Superwoman Nicole Black, the host of Sui Generis, probably the best New York law blog, has decided to return to her roots and limit Sui Generis to discussion of New York legal matters.  So what happens to those of us who have come to depend on Nicole for our daily dose of humor.  Well, Nicole has started a whole new blog, Legal Antics.  To prove her mettle, there’s a hysterical clip from Monty Python and the Holy Grail, one of the funniest you will ever find.

I have no idea how Nicole comes up with the stuff she does, but it’s terrific.  I am particularly floored by the fact that she has time to do this.  Believe me, keeping up with world is not an easy endeavor.  I thank Nicole for all the information and enjoyment she has brought up to now, and for her can’t wait to see what she will post tomorrow. 

Not to say I told you so, but I told you so.  Second Circuit Sentencing Blog brings to the forefront the decision in US v. Canova.  Despite a monumental effort by Paul Shechtman (yes, THAT Paul Shechtman), the Second Circuit decided that if the Judge Covello of the District of Connecticut was not going to do what he was told, then they were going to smack him, kick him, throws things at him and then kick him again.  The message is that they will grudgingly tolerate a little downward departure.  Little.  But make it a real downward departure, and it’s coming right back at ya.  As many times as it has to.  Get it?

No reason to restate what has already been stated at the Second Circuit Sentencing blog (and better than I could state it anyway), but I would like to add an additional point.  For those who think that they can make a serious end run around the advisory sentencing guidelines by using such cheap tricks as facts, law and reason, forget about it.  The only thing you’ll get out of it is an extra appeal or two.

Booker was just a bad dream.  It never really happened.  It’s a figment of your imagination.  It’s a cruel, cruel hoax.  There is still hope that the Supreme Court will address the Circuits’ refusal to give meaning to Booker and Fanfan, and its artful use of the word “advisory” to mean “we advise you to use it. Or else.”  What the Circuit fears is unclear, but its message in Canova cannot possibly be misunderstood. 

For those federal judges who come here to slum (I know, you only come for the Paris Hilton pictures and never read anything), I applaud and admire those of you who refuse to be turned into grid-reading clerks and exercise independence.  Your refusal to go quietly into the night is an inspiration to those of us who believe that the law requires a broader vision than the Sentencing Guidelines Manual.  And I believe I speak for all defense lawyers, and likely many prosecutors as well, when I say that you are what keeps us from becoming complete cynics and turning the Constitution into an artifact.  Thank you.  Sincerely.

An excellent discussion of high profile criminal cases by Mark Bennett.  While there is a definite skill set that’s acquired from dealing with the media when necessary, his points are well taken.  The first time a lawyer gets a high profile case, there is the ego factor.  The initial blush of attention is quite an ego boost.  But eventually, the bloom is off the rose.

It is almost always in the client’s best interest to avoid media attention whenever possible.  Contrary to the client’s wishful belief, the media is rarely the friend of the defendant, and the media is seldom willing to be controlled or manipulated.  If anything, the defendant is the lunch meat in the media sandwich.

When the case is destined to be in the media no matter what you do, then knowing how to play the game, and who the players in the game really are, is critical.  There is no appeal from the court of public opinion.  Nor are there any “do-overs” when the wrong words flow from the unskilled lawyer’s mouth.  I have seen many, many lawyers who are enthralled with the attention and fail to realize the harm they are doing to their client and their case.  The biggest mistake is to think anyone cares about the lawyer.  With a few notable exceptions, the lawyer is soon forgotten as just another guy in a suit (or gal in a dress, as the case may be).

And while the lawyer is posturing for the camera, his bread and butter clients fear that they are too unimportant for this now “famous” lawyer and go find someone else to service their mundane needs.  So if you find yourself in this situation, enjoy the fifteen minutes as you will likely be paying the price for a long time afterward.

When I became embroiled in the debate between Eric Turkewitz of New York Personal Injury Blog fame and the even more famous Flea, a new world opened up to this Blawg.  Before, the readers here were largely limited to lawyers and people interested in criminal defense law.  Suddenly, the physicians appeared. 

At the end of each piece is a survey.  I don’t know why it’s there, but it came with the program.  The survey allows readers to vote on whether the liked the piece.  Let me be blunt:  The doctors hated my pieces on the Flea.  I’m fairly certain that they don’t care much for me either.  More so than anyone else, the docs responded to the survey, and let me know what they thought.  For that, I thank them.

There have been a number of lessons learned.  Not the lessons the docs thought they were teaching.  Oh no.  I would like to say that I am shocked by all this, but I’m not.  It’s sad, but not surprising.

As readers here no doubt know already, the Flea is on trial in a med mal case for the death of a child.  That a child died is, of course, sad, but hardly indicative of med mal in and of itself.  On the other hand, it doesn’t mean that no medical malpractice occurred.  The outcome does not prove the fault. 

Lawyers realize this, unless of course they are blinded by bias.  But what the fans of the Flea have proven is that doctors, supposedly strong in the analytical approach, are as blinded by self-interested bias as, say, cops (see, I’ve tied this into my general theme).  Physicians have blindly supported the Flea in droves, despite the fact that they know absolutely nothing about the facts other than they like the Flea’s blog.  Is it possible that a guy who writes a fun and interesting blog can commit malpractice?  Absolutely.  What does one thing have to do with another? 

Now I would take no issue with any doc providing words of encouragement to a perceived “friend”, albeit a virtual one, during a trying time.  But that’s not where these supporters go.  No, they are certain, and indeed quite zealous, in their absolute belief that the Flea could never commit malpractice.  No, no, no.  No way could the Flea be wrong!

Is the Flea wrong?  How in the world would I know?  I know nothing about the case.  But neither do the docs.

Non-physicians generally want to belief in the Marcus Welby syndrome.  Doctors are healers.  They are kind and wonderful people who have dedicated their lives to alleviating the pain and suffering of their patients.  We believe this because we need to believe it.  We need to believe that there is someone out there who can help us.  So far, so good.  We also need to believe that docs can cure anything and everything, because the opposite is too difficult to accept.  We reject the notion that there is pain and suffering that cannot be fixed.  We choose to reject that notion so that we can sleep at night.  That’s a pretty heavy burden for docs to bear.  So they don’t.

Physicians realize pretty early that they cannot fix everything.  And once that is beaten into their heads, they become steeled to the idea that they cannot collapse in frustration and empathy when their skills prove lacking.  It happens.  It will happen again.  Get over it.  This is the only healthy approach.

So hardened are they to the limits of doctorkind that they can jump to the Island of Conclusion when their good buddy Flea is on trial.  The real jury of his peers has found him not guilty.  No facts needed.  Case closed.  Unfortunately, the Flea will still have to suffer the decision of 12 mere mortals. 

And so, the physicians have revealed, courtesy of the anonymity of the internet, their true feelings.  They will circle the wagons and protect their own against the enemy patient, and the archenemy lawyer, when their supremacy is challenged.  Does this make us admire you all the more, doctor?  Or does this make you as mundane as, say, a cop?  It appears that all of us have far more in common than you want to admit.

Every few years, we begin to find larger numbers of defendants showing up at arraignment with cuts, contusions, and other miscellaneous signs that they have been the subject of a recent beating.  These aren’t the heinous criminal types, but the trivial offense types.  Often, their only alleged offense is disorderly conduct and resisting arrest.

It appears that we are again in one of those periods where perps are being “tuned up” by police with greater frequency, based upon the number of comments from defense lawyers of defendant allegations.  Anecdotal evidence, of course, but it’s the nature of the beast.  In the most absurd of these cases, the complaint reads something along the lines of, “The defendant assaulted the informant’s (police officer friend of police officer “victim”) hand with his face, causing informant injury and requiring informant to receive medical treatment.”  I’m sure we’ve all had a few of those complaints in our careers.

In a rational world, the young ADA (assistant district attorney) in ECAB (early case assessment bureau) where these complaints get written would give a nervous giggle when he heard about these, tell the officer to go home and toss the case.  But this isn’t always a rational world.  Too often, the young ADA takes the officer’s sincere expression of pain seriously, writes it up as is and sends it off for arraignment.

In a rational world, the young ADA, oops, I mean young criminal court judge, would read this complaint (technically an Information until converted to a complaint by a supporting deposition), give a nervous giggle and toss it.  But this isn’t always a rational world.  Too often, the young judge takes the officer’s allegations as real and either pushes for a plea or sets some silly amount of bail because of the defendant’s propensity for violence.

Please understand, I am neither advocating nor excusing violent acts against police. Not at all.  But these are “tune-ups,” not attacks on police.  So what is this tune-up?  This is where a cop tells some kid on the street to do something, like move on, or go here or there, or to shut up, and the kid either doesn’t do it, doesn’t do it quickly enough or (god forbid) refuses.  Refuses!  How dare some mutt refuse to comply with the order of a police officer.  We’ll teach him who’s boss.  And then comes the lesson.  He won’t make that mistake again.

As an attorney, I tell my clients to do as they are told by police officers.  Even if they think the officer has the wrong guy, or they don’t want to, or there’s a reason not to do so.  The reason for this advice is simple.  They aren’t going to feel any better showing up at arraignment beaten then they will in sound health.  There’s just no benefit in it for them.  Some complain that this is just wrong.  I can’t disagree, but that really isn’t the issue.  A beating is a beating.  There’s no spin on it that’s going to make them feel better about it.

But here’s the conundrum: How to distinguish the beating given for good reason (where the defendant has in fact resisted arrest, physically attacking the police officer and hence given cause for the police to use force to take the defendant into custody) from the basic tune-up?  Sometimes, the answer is fairly simple, such as the example used above.  Other times, it may not be as clear.

From the police officer’s perspective, their right to protect and defend themselves from violence is paramount.  There’s good reason for this.  A cop is potentially a target of violence at any moment by the very nature of his job, and must be capable of protecting himself without fear of second-guessing so that he can return home each night to his family alive.  It is unreasonable to expect cops to risk their own lives for some legal niceties that are decided in the quiet and peacefulness of a courtroom when the threats come in a flash on the street.

But our faith in the veracity of their position is undermined not by defense lawyers, but by their fellow cops.  We aren’t the ones doing the tune-ups, and making their situation untenable.  We just bring it to light.  So any complaints that our efforts to protect citizens (and yes, even non-citizens) from unwarranted beatings by police tends to threaten the ability of good police officers to defend themselves should be directed at those police officers inclined to assert their machismo, or perhaps their masochism, as well as their low self-esteem issues that manifest themselves by abusing their authority to beat up helpless people on the street.

But that doesn’t fix the problem, since it is not only unlikely to happen (the blue wall of silence type stuff), but it does not address the failure of the prosecution and courts of doing their jobs in distinguishing real offense from those raised to cover-up a good beating.  For those prosecutors and judges who reject the notion that these things can possibly happen, or for those who prefer to default to the “cops good, defendants bad” theory of adjudication, there are a bunch of human beings out there who need you to fulfill your sworn responsibilities of protecting them from the police.   It’s not always easy?  Welcome to life on the streets.

To call it a pet peeve is to diminish its significance in the realm of communication.  It drives me nuts that lawyers, witnesses and especially judges are no longer capable of expressing themselves with sufficient precision and clarity to convey a meaningful message. 

Most of us, fuzzy thinking ourselves, do not realize that this failure to communicate happens.  We assume we understand by placing the gist of the communication into our own hazy world of comprehension.  The bottom line is that the sender has no idea whether he has communicated whatever it is he intended to, while the recipient has no clue whether he got the idea that the sender was attempting to communicate.  Convoluted indeed.

And so, I was excited to the Concurring Opinions piece entitled “When Words Lose Their Meaning.”  Prof. Frank Pasquale, late of Seton Hall Law School in beautiful Newark, New Jersey (“Why do they call it the Garden State?  Because the Oil and Gas Refinery State wouldn’t fit on the license plates.”)


wise book When Words Lose Their Meaning . His take on Thucydides is particularly relevant to our predicament .


That’s just incredible!  Just the other day I was telling my wife about the relevance of Thucydides to our current predicament.  This is way more true than you are likely to realize. But enough about me. 

You should read the post.  You should read the book.  But most of all, you should spend a few minutes thinking about the subject.  Listen to yourself communicate, and ask yourself whether the sounds emanating from your mouth or the marks emanating from you pen do anything to clarify and illuminate, or just waste ink.

I cannot begin to express my disappointment; No, Anguish, that the Flea has pulled his live-blogging of his med mal trial from his blog.  Did plaintiff’s lawyer discovered this secret cache of feeling?  Was he scared away by the foreboding of the Turk?  Is he just suddenly bashful?  Did his first day of trial bear a striking resemblence to Hiroshima? 

We don’t know!  Maybe we will never know.  This is a loss for all of us.  Now what am I supposed to do with all this popcorn?

Don’t you just hate it when you or your kids are about to climb on that horse, jump into that go-kart, scale that rock wall, and the attendant says, “But first, you have to fill out this form…”  You know the form.  The one that says you hereby absolve Joe’s Horse Farm from all liability, including but not limited to intentional murder.  If you are like me, it always makes my skin crawl that the operators of the amusement is happy to take the money but wants nothing to do with their responsibility for making the activity reasonably safe. 

Debell v Wellbridge Club Mgt. Inc., as reported by New York Legal Update.

So why do businesses do it?  To make people believe that they have assumed all risks, regardless of reasonableness, foreseeability and validity.  If people believe that they can’t do anything about it, there’s a good percentage of people who will accept the idea and walk away from an injury caused by the operator’s failure to exercise reasonable care.  Not everybody is going to call for this, but hey, they’ll take whatever they can get.  While it would seem to me that the very use of these releases should be unlawful, since they only serve to persuade the intellectually vulnerable to forgo their rights under the law, there is no such prohibition and the use of preemptive releases remains pervasive.  But if you might have been inclined to believe this tripe before, at least you won’t now.  I’ve done my good deed for the day.

Though not criminal, there is an anonymous pediatrician blogger (the “Flea”) who is about to start trial in a med mal case where a child died, and he is blogging about it on a daily basis.  With morbid fascination, we experience trial through his eyes.  Discovered by Eric Turkewitz of the New York Personal Injury Blog, the Flea details his feelings inch by inch, day by day. 

Rarely do we get to experience what the litigant thinks, expressed so clearly and with all the love that Flea has for lawyers and the legal system.  Also fascinating are the comments from his fans.  Some are sycophants and others not, but all approach this event with a healthy dose of bias, which is quite remarkable given that medical blogs tend to draw a better educated crowd than, say, the Britney Spears blogs.  If you ever wondered how delusional the mind can be, this trip will give you some insight.

I plan to check it out on a daily basis, and urge all lawyers to do so as well.  This is like knowing that a car crash is about to happen, but not knowing which car will survive.  Stay tuned.

One of the most important, and elusive, things a trial lawyer wants to know is what juries think.   Just by asking the question, we reveal our ignorance because there is no such entity as “juries”, each jury being a world onto itself.  But as much as we try, and often believe, that we have some clue as to who we want on a jury (or more truthfully, who we do not want), we are never able to truly appreciate the dynamic that happens when the jury room door slams shut.

And so, I can appreciate the efforts of Anne Reed at Deliberations in her discussions of focus groups.  If you’ve never had the pleasure of watching a focus group, it is one of the most amazing things you will ever see. 

There is one significant difference between a focus group and a jury.  A focus group has a moderator, who theoretically leads the group.  The moderator should be neutral, however, if the group is to go where it wants to go, and should avoid influencing the group’s decision in order to maintain the integrity of the process.  Even so, the moderator must rein in the group when it goes into some very weird and unanticipated places.  And you cannot believe the places where a focus group can go.  So imagine where a jury, lacking a moderator, can end up. 

Reach back into your fond memories of Sociology 101.  Remember the “risky shift phenomenon?”  This is why juries (and focus groups) run amok.  One person (a dominent personality) says something foolish, and suddenly it becomes reality to the whole group.  Alone, each might be hesitant or cautious about going out on the limb, but with the strength and support of others, it all seems so reasonable.

Litigators spend a lot of time preparing, from strategy to investigation to execution.  But all of this ultimately depends on how it works with the jury, the constant unknown.  While my experience with jury “experts” has been far less than satisfying, any increased understanding of group dynamics helps to “focus” my efforts.  It’s well worth a read.