SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_03 0:32

Hello, everybody. This is John Katz, a Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. I am very excited to have today's guest with us. Carolyn, how do you pronounce your last name? Just as I thought, Carolyn Eliphant and I met probably 20 years ago when there was something called Solo Says. I don't even know if it exists anymore. It was some sort of, I don't know what, something created by the American Bar Association. I used to go to some of their uh monthly lunches, and uh she's a big uh a big cheerleader for solo and small law firms, and she's in fur energy regulatory lawyer, she'll tell you. But the main thing that made me contact her is I emailed Carolyn. We've been in touch with each other on and off over the years. I said that she is elevated to badass status, having spearheaded and led the uh uh and led the writing and led the charge for solo and small practitioners to fight back against the Trump administration's onslaught against lawyers. I don't care what your uh what your uh political pedigree is, whether you voted for Trump or not, whether you still like him or otherwise, he is making an onslaught against lawyers. And uh after I found out that it was too late for me to sign on to the uh uh the amicus brief for the Perkins-Cuy case against the US uh the executive branch of the government, I sign on to the Sussman Godfrey uh amicus brief, which mirrors that with that, Carolyn Eliphant, please introduce yourself to everybody.

SPEAKER_02 2:16

Hi, everyone. Thank you, John. It has been a long time. So as John said, um, I did uh lead the charge on the amicus brief. I also have had a practice, I've been practicing on my own for, I guess, over 30 years now. And I guess what I like to say is that I fight big energy. So I represent ratepayers, consumers, and landowners who are having issues with power companies, and my practice spans administrative hearings at state public utilities commissions and the federal energy regulatory commission. But I'm also I've had jury trials in federal court involving eminent domain cases, um, all the way up to the federal appeals courts and even one or two cases at the Supreme Court as an amicus. So that's kind of the scope of my practice. So I'm just like Don, I'm fighting fighting the man or fighting the woman.

SPEAKER_03 3:06

Carolyn, what is your web address or web addresses?

SPEAKER_02 3:10

Um, so for my law firm, it's just www.carolinelephant.com. I also have blogged about solo and small firm practice for 22 years, and that's at my website, myshingle.com.

SPEAKER_03 3:25

Did you already tell them how to spell Carolyn?

SPEAKER_02 3:28

I don't think so. So my name is C-A-R-O-L-Y-N-E-L-E-F-A-N-T.

SPEAKER_03 3:35

What brought you to the practice of law? And what brought you to the practice of, do you call it energy law?

SPEAKER_02 3:42

It is energy law. I guess it's all been very accidental. So I remember I when I graduated college at that time, law school was kind of the place that you could go when you didn't know what exactly what you wanted to do, and you didn't really it was expensive back then, but not astronomically crazy like it is now. So I went to law school because I like to write and I thought that law school would impose some rigor on my writing. And what I didn't realize is that it would stop the creativity out of it, and it would take me years to get it back. So that was how I wound up in law school. I had worked at big firms during my summers there, and I discovered that when you work at a big firm, the prize for being a top associate is just getting more work. And so I had having gone through college and law school straight, I just wanted to do something that was a little less intense. So I just came down to Washington and I applied to jobs. Um, the typical path back then is, you know, if you went to law school, you would go to like the Department of Justice or go to the IRS and their honors programs. Those programs were already closed. So I wound up in an agency called the Federal Energy Regulatory Commission that regulates utility companies and also the construction of hydroelectric dams. So it had a lot of environmental issues. And so that was where I started. And then I worked in energy lot, other firms after a while. And when I started my practice, I actually did do some criminal defense work when I started, which was very exciting. But um I did just regular civil work. I did court-appointed work at the D at the DC Superior Court. Um, but I also continue to do the energy work for I guess for smaller companies, renewable energy companies, and again, consumers and ratepayers and others who weren't really adequately represented in the energy space.

SPEAKER_03 5:34

And did you already tell us where you're located?

SPEAKER_02 5:37

So my firm is right, I've bounced back and forth between Washington, D.C. and Bethesda. Right now, I have an office on Wisconsin Avenue in Bethesda, but my practice is national. I I have a fairly large case in Maryland now, and the rate cases I do are in Maryland, but a lot of the uh pipeline work I do is all over the country. So it's Virginia, Oklahoma. I've had cases in Washington State and Texas and Louisiana. So it's more of a national practice in that for that part of it.

SPEAKER_03 6:08

Is it an understatement at all to uh say that you're a contrarian of sorts, to have uh uh supported a lot of people's desire to try being a solo or small law firm practitioner? And also to what extent have you supported people's ability to in reality be able to balance family and work life, including working from home or uh close to it if they have uh children they're raising during the day as well?

SPEAKER_02 6:35

Yeah, so when I started talking about solo practice, I mean there was a book, the Jay Floonberg book that was out, and that kind of assumed that people wanted were already ready to start a practice and wanted to and just needed help with the nuts and bolts. And the book that I wrote, Solo by Choice, which is also about starting a practice, the first thing it did was make the case for why people should consider starting a firm. At that time, the economy was good. People were able to go to almost any law school and start a six-figure or maybe was high five figures back in the day, job at a big law firm. And they weren't thinking about other options, even though they felt dissatisfied. So I thought that solo practice or law firm ownership was kind of one of the profession's best kept secrets because it gives you an opportunity to define your career and to control your destiny. And over time I realized that, you know, people think it's scary to start a law firm, but what's scary to me is to put your fate and your future in the hands of a law firm, which could do things unexpectedly. They could fire you, they could um, as we're seeing now, they could capitulate to uh president's demands and make you do the work pro bono on what is the latest like defending um I can't remember, but pro bono defense of of fossil fuel plants and all kinds of crazy stuff. So um, so that's why I'm such a proponent of it. And there's it's there's there's as many ways to start and run a practice as there are lawyers who decide to do it. And it's just that kind of diversity that's so intriguing to me. I mean, big firms always seem very generic in nature. It's hard to tell them apart or figure out what their personalities are. But with law firms, every time you meet a law firm owner, it could be somebody who's 80 years old and been practicing for 60 years or 50 years. It could be somebody just out of school who's, you know, starting a firm who's really, you know, confident beyond their age. And it's just, it's it's amazing. Um, and then with balancing work in life, one of the benefits I saw in starting a firm was that it would give me more flexibility. It didn't necessarily mean that I was working less, but I was working on my own schedule. And so I remember when my daughters were young, I would work, you know, I would get up early and work in the morning when they were asleep. And then I would take them to daycare or nursery school and that for a couple of hours, and then I'd spend the afternoon with them. And then when my husband got home from work, I would go to my desk at like eight o'clock and I'd work from like eight until one in the morning. It was just like the second, a second shift. So I was still doing the eight hours or nine-hour days and sometimes working on the weekends, but it was on my own schedule. And so I felt that that was less it sounds crazy, and in retrospect, I'm not quite sure how I did it, but it it was less stressful because you don't have somebody looking over your shoulder seeing if you're punching the clock.

SPEAKER_03 9:30

Yes. I remember what Ruth Bader Ginsburg said. I think it was maybe when she was in law school, she said, okay, she'd go to law school, she'd come home and spend time with her daughter, including uh singing silly songs together. And then I guess when the daughter went to bed, she'd go to study.

SPEAKER_02 9:47

Yes, I know. And she she was known for being a night owl, and she stayed up into the wee hours.

SPEAKER_03 9:53

So as a big tangent, I will tell about my two meetings with Ruth Bader Ginsburg. Did you ever meet her?

SPEAKER_02 10:00

I didn't meet her. I met one of her clerks, so I'm anxious to hear this.

SPEAKER_03 10:04

Okay. So I had a third chance to meet her, but by that time, uh uh I had our I wanted to wait online to meet uh my my god, uh Justice Brennan. I hope I haven't offended anyone by calling anyone but another deity a god. Uh but nonetheless, it was around 1991, and uh my law school, George Washington University, had some sort of summer reception. Uh, and Ruth Bader Ginsburg was there, I guess, in part because she was uh she went to law school with the dean of the law school, Friedenthal. So I went up to her, and that time she I think she was still on the U.S. Court of Appeals for the DC Circuit, but I think it was already known that she was bucking for something bigger. And I said, hello, Judge Ginsburg, and she barely said anything other than hello. I am going to meet, uh, say hello to Dean Friedenthal. We went to law school together. I said, Okay, well, good enough. So about uh two or three years later, I was invited to the only insider uh uh DC uh Washington DC party I ever got invited to, and that was for two or three years in a row. It was at the home of Adrian Barth, and her husband Alan Barth was an editor for the Washington Post during the Watergate era. And I would drive Adrian back home. She lived two blocks from me in DC from uh our monthly ACLU uh meetings in in uh DC. And so she started inviting me to our annual eggnog parties, and Daniel Shore would be there, and Chuck Raw was there at one of them, and uh, I'm not remembering all the other names, but it was it was quite a bevy of people. Oh, yeah, Mark Plotkin from WTOP radio. I mean, the the the list goes on and on. So who was there at the second time I went to the eggnog party? Sure enough, I go in the entrance and they're standing by the kitchen with Adrian, is Justice now, Justice Ginburg Ginsburg. So I said, Hello, Justice Ginsburg. She barely says anything more than hello, I'm going to get some eggnog. I said, Adrian, that's twice that Justice Ginsburg didn't say much to me. Is it something I said? And Adrian said, She's just shy.

SPEAKER_01 12:18

Oh, that's a great story.

SPEAKER_03 12:19

If she was shy, I think it was one of those instances of someone who has no stage fright, but when they're talking to uh new people in person, maybe they just don't uh feel as comfortable. Uh but nonetheless, moving back on to our topic, uh, which is uh we're gonna get there to the uh the amicus brief and beating the prosecution generally. I do want to know what was that point at which you decided to go solo, and and I take it that that proceeded when you were doing some of those uh criminal cases in the superior court.

SPEAKER_02 12:54

Right. Yeah. I started my firm. I had been at a a boutique, a national boutique energy practice. I it wasn't crazy about the work, and um and I guess I also wasn't a very I was the firm told me I wasn't partnership material. I think I wasn't very good associate material because I always wanted to work on my own projects rather than what I was hired to do. So um so they gave me six months to find a new position, and I wasn't that jazzed up about just doing traditional energy work. So I looked a little bit, but I decided this is the time to start a practice. And so one of the ways to get revenue in the door, I did some work on a contract basis for other energy attorneys, but I also decided to do court-appointed work and I took the public defender, had this three-day course. I had like a big, like three notebooks full of stuff to say. I remember like when they would call the cases, I'd be reading from the uh from the little script that they gave us.

SPEAKER_03 13:47

I went to the same one in 1991.

SPEAKER_02 13:50

Okay, I think, yeah, the one that I went to would have been a little bit later. It would have been, I think, in 93 or 94. It was excellent. It was so good. And then there's this big handbook that I bought, which you know had all the case law in it. I used to do research in the public defender's library so that I could get access to Lexus. But I really it was it was very exciting. I was really diligent about the cases that I handled. So I did get some good results. Um, and it was just, I saw part of DC. It was so different from energy practice. At that time, energy practice was very old, very white, very male. And so to go into the um the attorney's lounge at DC Superior Court and see this rainbow of diversity. I mean, there was different genders, different races, different ages. I mean, it was just it was it was so exciting. It was this part of DC law practice that I'd never seen.

SPEAKER_03 14:40

So and um so it was around 1993 that you went solo?

SPEAKER_02 14:47

I think, yeah, I started at the end of 93, beginning of 94, like right around then.

SPEAKER_03 14:53

To what extent were you being an altruist by sharing so much? And to what extent are you being an altruist by sharing so much with people about running their own firms or running a small firm? And to what extent is it uh a source of any profit for you?

SPEAKER_02 15:08

So over the years, my blog has generated some revenues, obviously not enough to uh to retire off or even to put kids through college. But um in its heyday, I had, you know, when blogs first came out, they were based on sort of a readership model or a sponsorship model. And so over the years, I've had benefactors like Nolo, the publishing company for pro se lit for doing law pro se for a long time. They were a um, I guess almost like a benefactor. All I had to do was like share my syndicate my content with them. And they paid me like, you know, I don't know, it's like $2,500 a month for just, you know, doing something I was doing anyway. And I had other ads. So I mean, it's it's probably, you know, over the years, like I said in the heyday, it made maybe like $15,000 or $20,000 a year. And now, you know, sometimes like I'll sell programs or courses through the site, but it's it's really been more of just an endeavor, something that I'm passionate about and something that I think improves the profession in two ways. It helps give people, it helps people find lawyers who are dissatisfied find a different path. And so it makes them happier. But even better than that, I think about all the attorneys who have started firms because of materials that I've put out there who have helped clients and you know changed the law or saved clients or done, you know, done that. So I I get a lot of satisfaction from improving both the lives of lawyers and more broadly the legal profession.

SPEAKER_03 16:38

The way I became my own boss, Carolyn, in 1998 was that my former law partner of 10 years, Jay Marks and I, and Jay was mainly practicing personal injury and wanted to break into immigration, and I was uh had done a detour into personal injury, wanted to get back into criminal, is we both uh were representing co-plaintiffs in a personal injury case. And we showed up uh the morning of court, and the uh defense lawyer gets a postponement uh saying, um, what is it? He said, Um, I'm sick and my client's sick. We so we need a postponement. And uh so he got the postponement, and then we came back to and then uh Jay and I went to the cafeteria of the courthouse and uh we talked about what we're gonna do with our lives, and we were both ready to be our own bosses. Two months later we come back for the trial, and the uh the the defendant's lawyer said, Um, my client uh he's he cut his hand, he's a kitchen worker. He cut his hand recently. Uh if he doesn't take Vicodin, he can't think clearly. If he takes Vicodin, uh then he can't think clearly either. And uh one or both of us said to the judge, Vicodin, my butt, he's reeking of alcohol. Just like uh the last time in court, he's not gonna be able to think straight. But nonetheless, the judge granted the postponement.

SPEAKER_01 18:08

Oh man.

SPEAKER_03 18:09

And uh then Jay and I uh spoke some more over in the cafeteria, and uh within uh two or three weeks later, we decided let's become law partners. So, how about that? We we knew each other since we were six years old in our hometown. Our our paths crossed here and there in public school, but we were never uh spending much time with each other. And it was uh I guess I owe it to that uh defendant's Laura andor the defendant for helping us become lawyers for 10 years and giving me the courage to go ahead and do it.

SPEAKER_02 18:42

That is such a great story. I love that.

SPEAKER_03 18:46

A true one. And you know, I miss many things about Jay. We've remained friends. How many former law partners, Carolyn, remain friends? So, you know, we we've uh uh exactly went off on our own uh split 17 years ago, and uh the things I miss about uh not being with Jay anymore, and if Jay listens, he'll hear this, is you know, we'd have such great brainstorming sessions, and uh we we both encourage each other with our strengths. And I mean, heck, uh I even became uh uh a well-known adult entertainment lawyer in the area from in 1999. We were uh sitting around um uh chewing the fat after uh after our clients finished visiting us, and I said, you know, how do we get some more clients? And then he said, Weren't you interested in doing adult entertainment? I said, Yeah. I said, So how am I gonna do this? He said, Well, why don't you call that guy Dr. Phil Good? There was this guy named Phil Guy, and his nickname was Phil Good, and he would provide women for bachelor's parties, for instance. Yeah, you know, really, really high-class stuff. And and there was a c there was a cover um article about him in the city paper. So I found the yellow pages when we still had them, and he answers the phone, you know, goes into his cell phone, and he puts me in touch with this um uh adult actor from the 1970s period, um uh Bill Margold. I call Bill the next day, and uh, and he's regaling me at how he's been in over one, two, three hundred sex scenes. And within a year, I was the founding president of the free speech coalition of DC, Maryland, and Virginia, which is a chapter, a sense was a chapter of the uh uh main one of the main trade associations of the adult film industry. And I was representing adult video stores when they existed, again, zoning and regulations and stings and strip clubs and uh you know, just adult entertainers online and and and so-called escorts. I mean, the those kind of juices that we got from each other, those that kind of energy was amazing. And after the staff left for the day, and after the clients weren't there, we just shout out some stupid sophomore jokes to each other uh just to keep us going, you know. Uh like you said, to working until midnight sometimes when we're putting the finishing touches on a federal brief. It was really something.

SPEAKER_02 21:11

Wow. Do you still do adult entertainment? I kind of remember when that was your practice area.

SPEAKER_03 21:18

Well, it it was always a sideline uh for the from the criminal defense. Um, I mean, well, there's no more adult video stores for the most part. I'm available for people who uh if they want to, but I mean the the main focus for that was to do the criminal defense and the first amendment. So for first amendment, I'll still do uh some libel defense. Uh, but the main the main work, about 99% of the work now is criminal defense. Now to the uh Amica's briefs. Please tell everybody who doesn't already know and who doesn't already know about what uh what's going on with uh Trump's onslaught against. Lawyers and law firms, and what motivated you to get involved with uh the amicus brief and writing it uh to support Perkins Kuey and uh Sussman Godfrey?

SPEAKER_02 22:14

So I guess Trump seems to, well, he treats the office like his own personal uh toy, and he uh uses it to defend any wrong or transgression that's been made against him. So I guess he was upset that there was a law firm that actually represented clients whose interests were opposed to him. So rather than just ignore it or hire his own attorneys to fight back, he decided to go after the law firm and threatened to take their security clearances away, deprive them of access to federal buildings and to their ability to deal with staff because they had represented clients decades ago or like a decade ago that uh, well, they represented Hillary Clinton. So that was didn't put them in his good graces, and other clients who were opposed to his interests. And I guess a lot of the lawyers had left firms, had left the firm also. But it got me to thinking because coincidentally, um many years about five years ago, I represented these clients who had a maple tree farm with um in Pennsylvania, and a pipeline came through, and they didn't have all the permits that they needed for the entire pipeline, but they decided to move forward in Pennsylvania, assuming that they would be able to move forward in New York. So they took down all the trees, and it turned out that they never got the permits in New York. So here you've got this easement that's cleared of trees. So I handled the lawsuit for my clients where we got them compensation for the felled trees and for the time that the pipeline was um occupying the territory, and the clients have since resumed their maple syrup operations. But I saw one of the first things that Trump did in his first or second week of office was to announce that he wanted to revive that same pipeline that we had fought. He wanted to revive it and put it through. And I started thinking, hey, if I, you know, if this is something I oppose, is this going to be something that even I'm gonna attract the attention of somebody like Trump? And so when I saw what he was doing with the Perkins-Co-Y order, it really hit home, not just for me, but for really any individual practitioner who's fighting the government in some way, who's challenging a policy, who's defending immigrants, who's um who's challenging law enforcement or suing law enforcement. And so I saw that there were a lot of large firms that were not standing up for Perkins-Coey, but it was just so frustrating. And so my immediate reaction was to chime in both to support the firm and show the and and to do something and not feel helpless, but also honestly, I saw this as something that could potentially threaten solo and small firms, including myself. And so it came from a personal motivation or if that's selfish or not, I don't know.

SPEAKER_03 24:56

But uh well, well, what a number. Uh, I think within an hour before we started uh interviewing together, this is pre-recorded. So today is uh April 30th. You uh you sent out a link uh for the Sussman Godfrey Amicus Brief. And uh what what a cool number. What a palindrome. 777 uh signatories. Did you just start stop it at 777 so you could have that number?

SPEAKER_02 25:23

No, the first, so the first one for Perkins Coe, we had 334. And then after we filed that one, when people found out about it, they were disappointed that they hadn't signed on. And so my goal was to just really double the 334. And so 777 exceeded that. And there were people, we had to shut it down. My assistant manages the list and gets the list, you know, because we have all the names at the back. And so we we had to have a cutoff. We couldn't just be, you know, the briefs were due on the 25th, and so we couldn't have people, you know, have the changes being done at the last minute. So no, it just happened to fall on 777.

SPEAKER_03 26:00

Well, I'm I'm looking forward to uh for the first time today, scrolling down to see my name on the one for Sussman Godfrey. Um, so was this a one-person operation essentially for you to do this drafting, drafting? Did you have people helping you uh do the writing and research?

SPEAKER_02 26:18

So I was on Facebook and I was talking to a colleague who was also very frustrated about what was going on. So I asked her if she'd be interested in doing an amicus brief, and she immediately agreed. That was Andrea Goldman. She's an attorney with a mediation uh practice in Massachusetts. And I had met her at a Solo Says dinner years ago when I was up in Boston. So um, so we we co-authored the brief, and then there was another young attorney, um, Kim Russell, who just started her own firm who does a lot of um high-stakes litigation as a contract attorney for other firms, and she's looking to bring on some more of those cases herself. So she volunteered her time and she drafted the motion for leave and she did some editing. And then there was another attorney, Christina Jump, with uh I guess she's with a nonprofit in Texas, and um she also volunteered for this round to do some edits. So so there's definitely support. And of course, my assistant had to, you know, manage all the lists that we had. So it was a group effort, but um the brief was was co-authored, but uh so and and and and that was good. And I worked really well with all these people too. Sometimes when I I work on a lot of team efforts, and um I I think maybe it's because the people, the other attorneys are being paid because they often seem to be doing things that just increase the hours on the brief, but we worked together really well. And uh came together very quickly.

SPEAKER_03 27:51

Maybe I read through the brief uh too quickly. I I originally thought that your yours was the name on there. Were there other signatories to it as well?

SPEAKER_02 27:59

So I'm the only one who's admitted in DC, but in footnote one, there's credit to Andrea and to Kim because I think that's why that's why I missed it. Yeah, no, because I couldn't figure out they didn't want to be admitted pro hoc feachy. I offered them that option and they didn't want to do that. And um, they're not, you know, Andrea is only admitted in Massachusetts. Kim, I guess Kim could eventually get admitted to the uh federal court in DC. And actually, what there was a little bit of drama the first time when I filed, because what I hadn't realized was that my membership, the federal court had expired. So I filed when my membership was expired, I had to go back and renew it very quickly.

SPEAKER_03 28:40

So I just take a visit there if you can't do remotely. Okay, so let's get to the uh uh meat and bones to this, or uh is the vegan eye on the tofu and bones. Uh what is the thrust of these two amiga's briefs? Do they beyond what you've already said, do they both duplicate each other? They do. And um what's the status of both uh sets of lawsuits? I mean, I I just did a glance at PACER for the uh Sussman Godfrey case. I see there are over 100 filings already, and maybe a lot of that has to do with a bunch of other uh amicus uh parties joining.

SPEAKER_02 29:21

Yes, so the briefs, the Perkins-Coe brief and the Sussman brief are virtually identical except for the fact sections where we're specific to the the law firm. So for the Perkins Coe brief, by the time we filed our amicus, there had already been like 10 amicus amicus briefs that have been filed by law professors, by ethicists, by former presidents of the DC Bar. And we didn't really, and and it's not really good practice to duplicate legal arguments in amicus brief. I mean, the court wants to hear, I mean, the standard for filing the amicus is to be able to bring forward a unique interest. Um, but in addition, courts don't want to read me too arguments in the amicus brief. So we decided to focus on the practical repercussions of this of this order and what it would mean for solo and small firm practitioners and by extension, their clients who are the majority of Americans who are represented by solo and small firms. So we focused largely on the practical consequences. Um, Andrea actually had a very good argument that we made, which was that the rule by putting this these orders out there, you encourage gamesmanship, you encourage attorneys to, you know, if they don't like the opposing counsel on the other side, to try to bring them to the light of the administration and see if there's anything that you can do to get the administration to go after them.

SPEAKER_03 30:42

So they call ratting out people.

SPEAKER_02 30:45

Rat yes, ratting out people, exactly. It encourages that kind of conduct, which is contrary to how attorneys are supposed to behave. I mean, you know, if you're obviously if you're opposing somebody in a in a case, you can you can be oppositional, but attorneys are supposed to be the legal profession is supposed to have some degree of collegiality in nature. So we talked about that. We had a lot of statistics on how many solo and small firms have exclusively small federal-based practices that could be impacted. Um, how many solos, how the many solos and smalls represent controversial or marginalized clients who are just the type of client that Trump is likely to target. So we talked about those practical elements, uh, and that was really largely what the focus was. I mean, we mentioned the right to counsel arguments and First Amendment arguments and how this also violates the separation of powers, but mostly we focused on the on the um the practical issues and also the point that you know, solos and small firms don't have the the resources that large firms have. These large firms are represented by other large firms that have ample resources to defend them. Solos and smalls don't have that, and so it really puts us in a precarious situation.

SPEAKER_03 31:58

Yes. Okay, so uh by the time that you filed the uh two Megus briefs, uh headway was already made, right, by Perkins Kuey, and Sussman uh at the very least, I don't know about Sussman Gott, because they were later on to get a temporary injunction uh except at the very least, not uh overturning the taking away from security clearances. Do I have that right?

SPEAKER_02 32:23

Yeah, so they both had by the time we filed the temporary restraining orders have been granted in both cases.

SPEAKER_03 32:30

But the harmful thing about those temporary restraining orders is they didn't touch, they they they didn't uh disturb the uh the stripping away of security clearances for the laws in the in the targeted firms, right?

SPEAKER_02 32:42

Right, yes, that's correct. So, and they're also just temporary, and so obviously the court has to reach the merits. So um there was a hearing in the Perkins-Coey case on April 23rd. Perkins-Coey had filed a motion for summary judgment and permanent injunctive relief. The government had filed a motion to dismiss, arguing that the case case wasn't right because nobody had uh had lost their federal access. And the government had also argued that Perkins-Coey only sued seven agencies, and so arguably other agencies that weren't named as defendants could continue this kind of conduct. And so what Perkins-Coey did was just ask the court for leave, and then they listed they named all 40 uh agencies and they filed the complaint earlier this week.

SPEAKER_03 33:31

Well, that's why I saw that on the uh in Pacers. So when you say that the uh the the uh the administration, the Trump administration said no one had lost access, you saying that they were saying no one had lost access to security clearances or other kinds of access, because I'm particularly concerned about this security clearance aspect.

SPEAKER_02 33:50

Yeah, I'm trying to remember. It was in their motion to dismiss, and it may have they they may have just mentioned it in passing, or or they said they I don't remember what they said about the security clearance issue, but they just said that everything was it was it was premature because the order hadn't taken its full effect or because the agencies had discretion to make these kinds of decisions. So I don't remember the details of their argument.

SPEAKER_03 34:16

Well, Carolyn, I mean, before Trump uh took uh came to the White House for his second term, uh, about the only thing that seemed to threaten security clearances before then would be to uh, for instance, get a uh uh uh uh certain felony convictions and and and crimes of moral perturbitude and and well, even misdemeanors. It could even be a DWI conviction with uh uh whether or not there was active jail time. But I mean, before Trump came to the White House in this term, my general understanding for the for the criminal defense laws was if you get a first DWI conviction, no active jail, you're you're okay, uh, usually. And for criminal defense laws, if if we're representing someone who's accused, who's being prosecuted for uh uh just uh the crime of disclosing uh classified information, uh the lawyer representing that defendant has to have a security clearance. So that gets right back to the relevance of your uh lawsuit, Carolyn. Most criminal defense lawyers are solo in small firm practitioners. So imagine if you do have a uh a criminal defense lawyer, solo or small firm, mainly doing um military uh criminal cases uh or just security clearance type cases where the law has to have a has has to have a security clearance. If their security clearance is uh taken away, there goes their income stream.

SPEAKER_02 35:39

Exactly. That's the problem. And people don't realize how close to home these things hit. And it's with a lot of these policies. I mean, just tangentially, something like tariffs. I was at the farmer's market last week, and one of the vendors explained to me that the fish was $2 more because of tariffs. You wouldn't expect this national policy to, you know, to have implications in your backyard. And it's the same with these executive orders. They really hit close to home for sole and small firm lawyers. And like I said, they're clients because we represent, we don't rep, we often don't represent the large companies or corporations. We represent individuals and um small businesses.

SPEAKER_03 36:16

So for those of you who want to see the uh executive actions, executive orders against these law firms, you can just go to whitehouse.gov and click on executive actions. Uh, Carolyn, if people want to see uh your two amicus briefs short of going to the PACER official courthouse pages, are there are there any pages where your two briefs are linked to?

SPEAKER_02 36:39

Right now they're linked in my posts on LinkedIn. Um and I guess if you email me, we're also for all we've set up a mailing list for everybody who signed up to be an amicus, but if people are interested in keeping up with the what's going on in the cases and also getting access to the cases that way, if they email me at elephant e-l-e-f-a-n-t at myshingle.com, um we can get them on the list and they can see the briefs that way too.

SPEAKER_03 37:09

Okay, so um if it's okay with you, I can go ahead and get those. If they're you are actually URLs, if you or if you you permit me to put them on PDF, I can put uh a link to that in the liner notes uh for this podcast as well.

SPEAKER_02 37:24

Yeah, I can I can send the links to I I actually have the briefs online. I can just give you the two links if you want to post them.

SPEAKER_03 37:32

Excellent. Um now uh a lot of people might say, you know, uh the a lot of these actions against um uh Trump's onslaught against uh Laura's onslaught uh against non-U.S. citizens. Uh there was an onslaught onslaught against U.S. citizens who are federal inmates. Uh uh actually, were you seriously considering uh trying to outsource uh housing them? I think that the federal judges are gonna put a stop to that, saying you you can't deprive Americans of their uh constitutional rights by imprisoning them abroad. Uh, but fortunately, we do have uh people who are uh totally not lefty, not even left or center, not Democrats standing up as well. I mean, one of them is fire, right? The Foundation for Individual Rights and Expression, which has a slew of people from conservatives to liberals and everything else, uh also joining in various efforts, standing up against uh the Trump administration's onslaught, against the independence of uh of uh uh secondary education, as well as the free speech rights of uh non-United States citizens. Uh I think we've had some prominent I don't know if it included um his name escapes me. Uh it may have been Judge uh uh former Judge Luddig from the U.S. Court of Appeals for the Fourth Circuit, who's certainly a conservative, but you've seen this, right, Carolyn, where there are plenty of conservatives, plenty of Republicans who are also standing up to these excesses uh of the Trump administration, at least as far as they deal uh with lawyers and immigrants.

SPEAKER_02 39:19

Yeah, no, finally. I mean, especially judges. I mean, that's which is what they're supposed to be doing. That's exactly what the balance of power is, or checks and balances they should be checking, but um, you never know. But no, I think the judges especially have been very good, uh, you know, no matter what their uh affiliation is and kind of towing the line and standing up for what the law says.

SPEAKER_03 39:42

Right. Well, in addition to me uh meaning to talk about a retired judge, yes, the uh we we've got the sitting judges too uh uh you know putting some limits on what's going on. Yeah. Well are you seeing um are you are you seeing pushback uh by anybody against you, any nasty comments going on anonymously or otherwise among colleagues or just trolls online?

SPEAKER_02 40:11

No, no, I've been really surprised. People have been, I mean, it's it's been almost embarrassing because I didn't do this to be thanked or to get visibility of any type. And people have been so gracious in thanking me or posting their briefs on LinkedIn or on social media and saying we signed on to this, and you know, I get notification every time they do that. So people just want to be able to do something, and you know, sometimes just putting it out there, giving them an option to do it, it makes it it, it just satisfies that problem. So I've been surprised at the positive uh feedback I've had. I haven't heard anything negative yet.

SPEAKER_03 40:49

In order to file uh the two amicus briefs, did you uh by courtesy or by requirement first contact the uh lawyers for Perkins Coey or Sussman Godfrey?

SPEAKER_02 40:59

Yeah, so actually the lawyers for Perkins Coey, um, Williams Connolly, they got in touch with me because I had posted on LinkedIn about how I was thinking about doing this. And they somehow found out that I was doing it. And so they asked if there was anything they could do to, you know, to help or to just answer questions about the status. Um, but yeah, we had to reach out because you want to file an uncontested motion. And the Department of Justice's attorneys were very good and very quick about just granting leave, not just for our brief, but for all of them. You can see if you look at the docket, all of the amigos motions were unopposed.

SPEAKER_03 41:37

Well, talk about the challenge to these career justice department uh lawyers. That you know, the the these career justice department lawyers uh, you know, are gonna know that they're gonna be shifts in each presidential administration, but I have to imagine that they haven't seen nothing like what's going on with this administration about the shifts they're acts they're being asked to uh be involved with.

SPEAKER_02 42:00

I know, I know. I have a brother-in-law who works for the SEC, and he's just concerned that he might be asked to do something illegal. He hasn't been, but you know, that's the concern is just you know what you're asked to do in these um these times, so these unexpected times.

SPEAKER_03 42:21

So right, because you were talking about these stepping stones being, you know, if you were able to get the positions after you go to law school, you often do a federal clerkship, uh, then join, for instance, uh a prestigious job at the Justice Department. But I I have to imagine, Carolyn, uh, that there are people who can write their own ticket or just bypassing working for the uh executive branch right now.

SPEAKER_02 42:44

Yeah, I would, I would agree with that. It's just it's just too it's too risky at this point. And there's, I mean, you're gonna see a brain drain everywhere. You're gonna see it in government, you're seeing it in the sciences, you're seeing it really in any field that's touched by federal policy. So I I think you're right about that.

SPEAKER_03 43:03

It is interesting, you know, no matter how much uh I'm a zealot for the criminal defense side, I remember when I learned about the uh federal uh bar association, it was in 1987, and it was during my first summer during law school, and I was with the then-named uh uh Federal Home Loan Bank Board, which became the Office of Thrift Supervision. I was there for the summer, and then that became the uh part of the office of the control of the currency. And uh one of the lawyers said, you know, you might want to go to this uh annual awards dinner of the uh Federal Bar Association. And I went there, I didn't even know what the award was about. It turned out they were giving an award to uh uh someone from the criminal section of the Justice Department. Not exactly my politics, but just from my speaking with some of the lawyers there from the criminal section, they were very non political, uh, at least in terms of the wins. uh with with the president. So, you know, these are people uh who you could agree to disagree with. And to go on another tangent, as it turned out, well, this having been, it's called the uh the Thomas Clark Award. I guess you're familiar with that award, right? Uh named after the uh former Supreme Court Justice. And since he had passed away, it was his son Ramsey Clark who gave out the award. Now so Thomas Clark was apparently pretty conservative. His uh son Ramsey, at least by the time he left the Johnson administration as attorney general, was anything but and uh Ramsey and I teamed up together in 2000 uh doing the jury trial for the four plowshares activists uh Ramsey Clark, Steve Kelly, Susan Crane and Elizabeth Walls. Uh we did a jury trial for them where they're being prosecuted for hammering on warplanes against the uh depleted uranium bullets that they fire. And and Ramsey was almost like on the progressive side of being someone that the people uh who are conservative could agree to disagree with. Even when I mentioned to him about J. Edgar Hoover, I said, so what do you think about J. Edgar Hoover? You know, who was the head of the FBI when Ramsey was the attorney general and Ramsey blew me away he said I don't think he had any ill will. I think he was really uh uh proceeding what he with what he he thought was right and we need those kind of people where we can agree to disagree wow oh gosh so you really worked with uh with legal uh royalty well you know I was born in 1963 and I felt like that I I so much didn't understand that decade that I grew up in and and that alone was was was really cool. Carolyn the name of this show is Beat the Prosecution you already told me you've done litigation work and now during our online talk you've talked about the criminal defense. So uh in either order uh I'm especially interested in the criminal defense what did you do to get your victories in criminal defense? Were any of them through trial or was it through pretrial work?

SPEAKER_02 46:15

So I guess one of the victories I had was I had a case where um I I followed that that handbook and I made sure to ask for the uh the Brady and Jenks information. And so I made my request and it turned out that the prosecutor well we went to trial and it was a hung jury so the prosecutor he was very aggressive he was so upset that he had lost that he insisted on polling the jury which I objected to but the judge allowed it and then he wanted to bring the case back again. And so it at some point it changed prosecutors and the pro the new prosecutor who came over the case told me that yes indeed there had been Jenx evidence that hadn't been disclosed and so the case went away. And Jenx evidence for those who don't know Jenx evidence means the statements of opposing witnesses right right so um yeah I remember I was I think I was like eight months pregnant by then I remember reading I had gotten the transcript and I was reading the transcript to the judge and I was thinking to myself I can't believe it worked what they taught us in the DC public defender class.

SPEAKER_03 47:21

What kind of prosecution was it?

SPEAKER_02 47:23

It was for possession of a handgun. And so it was my client was in the car with his buddy who was a corrupt police officer and so they were stopped and the gun was under the seat and my client said that it belonged to the police officer but the police officer of course was exonerated and I guess he was no longer friends with the client so um so it was yeah it was a handgun possession. I think at that time it had 10 years um a 10 year sentence so I had other the other cases usually by and large just pled pled out or they got probation or could because when you start out doing the criminal defense work they would give you the smaller cases like the drug cases not drug possession well possession not drug sales or prostitution or smaller cases. So then you'd have the I don't know if you don't have the demonstration cases Mark Goldstone who uh represents demonstrators left and right and who does a lot of superior court work he was on the show a few months ago and and he said that uh with a lot of these protester cases more an effort by uh police andor prosecutors to just get them off the street whether it's intended to silence them or not but then just uh offered in what do you call it no paper their cases andor uh I I I for what's that called uh something in forfeit or whatever you just pay some sort of uh uh fine without a conviction to a post in forfeit to make the case go away I guess you didn't do any of those cases no I I didn't have I didn't have any of those like I said they were in the 90s and once I had my first daughter um the criminal defense wasn't really compatible with what I was doing with with being home just because you would you know my clients would get re-arrested and you'd be called to come down to the court you know within an hour's notice and that was not really viable the infant so uh whether it involves civil or criminal cases what are some of your uh other ideas about uh persuading through litigation even if it's not on the uh in the criminal uh realm so I've had a lot of challenges to Federal Energy Regulatory Commission orders um at the DC circuit I've challenged civil penalties that they've issued and I've also challenged some of the um findings of uh pipeline approvals or use of eminent domain for pipelines that are exporting gas and I guess what I've always found has been um very helpful in those cases is weaving in the personal story of either these small businesses that receive these civil penalties or else um the narrative with the exports is just that you know these pipelines are take taking property from domestic per from domestic citizens and exporting the gas to other places. So bringing in the story I also tend to handle cases of first impression that's really my strength is to handle cases that haven't been done before. And so I find that just spending a lot of time coming up with novel arguments that are based on arguments that have been accepted before but that take things an extra step, I think that judges have been relatively receptive to them. So a lot of the cases I've done on the gas side really changed the way that people used to start at litigating these cases. And people actually never even took these cases. A lot of the environmental groups wouldn't touch them because they thought they were losers and then I started winning them and all of a sudden everybody's interested and everybody wants to or at least nonprofits want to bring winning cases, not losing cases. So those have been things that I found have been um workable. I also speak to my clients a lot and try to get their input because I find that my clients have a very good sense of of arguments that make sense or that are persuasive. So in fact in one of the cases I had it was my client who originally came up with one of the arguments that turned out to to be the winner. I mean it had to be researched and it had to be presented properly but he actually had the initial idea for it. And um and so I found that speaking to my clients and getting input from them was also really helpful.

SPEAKER_03 51:40

You've brought up two two particularly great uh ideas here that are essential to persuading criminal defense Carolyn storytelling and the teamwork with the clients I remember Carol and I had a very difficult client it was a civil case but that does translate into criminal cases too so difficult he would always start uh from the beginning of the story almost every time I met with him and so I talked with Don Clarkson who's this great trial consultant great uh uh mental health consultant great psychodramatist and he said take time with this man in his own zone instead of talking to him from your office instead of having come to your office maybe just spend a weekend day with him just or half day a day may have seemed excruciatingly painful for me but you maybe just walk in the park with him and then while I'm in his habitat say some like look I'm really concerned about what's going to happen to you in court if you act this way I'm not gonna say it solved things but it just took help take the edge off me to make me a better litigant for him and it helped uh him trust me more uh and it it helped him see the light more it helped him take the edge off uh but in terms of this spending the time with the clients uh as I said on a previous show Carolyn uh when when I was um defending a man where I got his murder case I got his murder conviction overturned on uh habeas corpus on post-conviction on an ineffective assistance of counsel claim where he had a previous lawyer we got convicted I was at the trial or his college the summer before I was to uh to do the trial I ended up not doing it because I was a public defender at the time and I ended up leaving the public defender's office uh before uh the case was going to go to trial uh but Jerry said to me something that of course now is second nature idea he said so how are you gonna get to know about your client more as you know Jerry he's still in prison with no bonds so there's only so much I can get to know him there you know when I'm meeting with him and he said where does his family live I said 10 miles from the courthouse he said are you going to visit his home I mean Carol this is about 30 years ago I said to myself of course I'm gonna visit his home he said maybe you'll even spend an overnight or two there's myself of course now I don't know if you need to go to that level you have but sometimes it's really only when uh you are in places with your clients whether it's physically or personally where they are really going to open up to you.

SPEAKER_02 54:20

Yeah no um I my clients have invited me to stay with them um so I have not really had an opportunity to take them up on it but uh but yeah I just find this helpful and I think in both situations I mean you're representing criminal defendants probably some of them may never have been in that situation before my clients are typically landowners who have these mega gas companies trying to build things on their property and take their land away and they've they feel very defenseless. And I also like to try to empower them I mean that's the other thing I like to try to do is leave my leave my clients better than I found them. So with gas cases I've handled my clients after we've litigated their case whether they want or not they've gone on to start nonprofits to help other landowners understand what their rights are. You know Carolyn often early on when I'm representing my clients is say to them you know your case with me, this is a micro in your life but you've got a macro going on uh at least if they've done something uh you know uh that that got themselves into being prosecuted rather than just being uh falsely accused let's say as someone who had uh uh 12 beers uh within three hours and started uh started driving and I say you know I'm gonna work to get you out of this as best as I can I'm gonna look search for an acquittal at least work to get you uh little uh little or hopefully no jail time but at the end of the day you're still gonna be dealing with whatever uh led you to get behind the wheel after so much drinking and so so it it does help them feel empowered they know I care about them and I do because I'm a do-gooder I'm a bleeding heart and I found out a way to do that and uh and and and earn a salary from it as well an income whatever we call it right no and that's that's very possible also I mean you know that's one of the benefits of running your firm is you can do it your way and I think if you're passionate about something you can find a way to make it work from a revenue perspective. So I mean you know we criminal defense lawyers learn about persuasion through storytelling early on where did you learn about uh doing persuasion through storytelling I think it was uh when I was a summer associate at a law firm there was one partner there who was very much into telling the story and sometimes our clients we represented um it was an environmental firm but they represented a lot of polluters um but he you know was he he understood the importance of framing the issues from a perspective that would be palatable to a judge or a decision maker so I think that was where I learned it and the other thing is is I just that's the part of law that I that I like I mean I I I like the application of facts to law and how you can take people and use the stories to help inhabit the law because otherwise it just seems cookie cutter. So it's just the stories that appeal to me too.

SPEAKER_03 57:18

I think that's amazing that in a law firm like that you had any lawyers that had learned about persuasion through storytelling. Do you know how he learned about it?

SPEAKER_02 57:28

I'm trying to remember I mean he he was he was like a one of those bigger than life uh kind of partners you know with the fancy ties and the big rings and things like that. I'm trying to remember what his background was he I mean he was very interested he used to do the New York Times crossword puzzle literally in like five minutes.

SPEAKER_03 57:49

So I mean he liked things outside of law but I'm not sure where he where he he learned that from um I think he just had this he had a very gregarious personality and he got along well with people and so maybe it was just an extension of that just this interest in in other people which I guess I'm gonna loop that into Carolyn uh you know maybe uh some of these prosecutors get trained better than this but but I remember I had a uh an online copyright infringement trial it went for three days in federal court in Alexandria uh my client was facing uh definite uh jail time although I kept it to luckily uh I don't I think I kept it to well below the uh uh bottom of the sentencing guidelines uh he was convicted for um making available uh a bunch of pirated videos computer software and music online and I was stunned when the second share lawyer got up for closing statement Carolyn literally he was reading his closing statement word for word from the podium from a piece of paper okay fine so the uh the conviction rate for federal felony prosecutions over 90% meaning that you don't necessarily get great trial experience after all as a federal prosecutor but that's the only time I ever saw that happen. That was only rivaled it wasn't as bad for this one for my first murder trial you know such so much was riding against us on this we had a good defense because there were no eyewitnesses as there often aren't in murder cases. And the prosecutor who I assume knew what he was doing gets up and he spoke in monotone and his opening statement was not more than about three minutes. So I and and so what I did in in writing in uh in contrast to is I was standing up I didn't even fully stand up I was just in full in the moment mode and I looked right at the jury and I and I said to him as I'm getting up and walking over to him I said that's not what happened. This is what happened and I acted out what happened in my version I never saw how the prosecutor would be in closing because we actually got a good settlement in the middle of the trial when one of the jurors was late. They were at least one or two hours late and that gave us more time to finally negotiate to a yes. Carolyn we've been together for an hour I told you we'd be together for an hour. I would like this to be an opportunity for you to say anything you haven't already told the audience and also to remember ever remind everybody where to find you and the name of your book Solo by Choice I think it is yes yes so well thank you for having me on.

SPEAKER_02 1:00:38

I guess what I would just leave the audience with is that you know these are really trying times. I can't remember being alive in an era like this but as helpless as you feel there's always something you can do and you will feel so much better if you just do that small thing. So if you want to get in touch with me or find me, um I'm at myshingle.com you can email me at elephant at myshingle.com I'm also fairly active on LinkedIn these days. My profile name is just under CarolynElphant and of course there's my law firm website CarolynElphant.com I will throw this one out uh Carolyn because I think it's the benefit of everybody something that Ralph Nader said when I asked him a stupid question.

SPEAKER_03 1:01:18

Ralph Nader spoke at my law school when I was in my first or second semester. So that was in 1986 or 87. And then when he opened the floor up to questions I asked him what do you think about uh the situation with all these hippies who are now yuppies and just becoming conformists and having fewer people stand up uh for what's right just because it's right and he was totally correct in his response uh he was a little more polite than this but he almost said did you just hear what I said 10 minutes ago some major piece of consumer litigation sorry consumer legislation was started by two friends sitting at their kitchen table just drafting out this piece of legislation which is one of the most landmarked pieces of legislation to this very day and that's what I see you as having done you came up with this idea you rallied two three four other lawyers and uh another person helped write this brief and you you have all these hundreds of lawyers who have joined on thank you for doing that thank you and thank you again thank you so much for having me John I really appreciate it it was great to reconnect. Same here everybody you've heard from Carolyn Elifant not only an energy uh regulatory law or whatever you call it and often on if not always on the right side of that she spearheaded uh this effort to file the uh amicus brief against Trump the Trump administration's onslaught against lawyers and law firms that alone elevates her to badass status this is John Katz on a criminal defense and DUI defense lawyer in Fairfax Northern Virginia this is beat the prosecution because there is no other option thank you thank you for listening to this week's episode from Beat the Prosecution this is a regular podcast giving people a leg up against police investigations and prosecutions.

SPEAKER_00 1:03:19

Nothing discussed on our media sources such as our podcast or website is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution dot com by calling our office at 703 383 1100 or texting us at 571 406 7268.