One of my pet peeves is how we, as consumers, are subjected to petty theft and abuse on a daily basis.  Of course, it’s generally too small to be worth our time and effort, as attorneys, to deal with.  But it pisses me off, and I just don’t like being a pin cushion.

And so I stumbled upon The Consumerist.  Though not a law blog, it’s quite interesting and certainly holds no punches.  Frankly, I believe that the reason so many businesses get away with it is that we refuse to demand better and continue to patronize businesses that fail to fulfill their claims.  I can’t speak for anyone else, but when I promise something, I deliver.  There are no excuses. 

Consider this:  Have you ever noticed that when someone you pay for a product or service actually delivers, you’re so thrilled that you heap lavish praise upon them, swearing that you will never go elsewhere and coming dangerously close to promising your youngest daughter’s hand in marriage?  Why are we so thrilled by the mere fact that someone actually does exactly what we have paid them to do?  Because it is that rare.  What kind of sick world is that?

And as long as I’m on a run here, let me tell you how I stumbled across The Consumerist.  I was googling my VOiP provider, Sunrocket, to find out if there was anything out there about a consumer scam I came across today.  I signed up with a promotion for 3 additional months if the year was paid in advance.  When I questions the customer service rep as to why my invoice did not show the 3 additional months, I was told (by a very nice official young woman) that I would get the 3 free months after I paid for the second year, at which time I would receive a credit. 

This comes on top of voluminous service problems, constant “I’m sorry for the inconvenience” excuses and a bottom line failure to provide the service for which I paid.  Just another ordinary day for the American consumer.  Kinda ironic that the nice kids who work as customer service reps don’t perceive their role as cogs in the big wheel.  Oh yeah, I forgot to mention that I called an old friend in the New York State Attorney General’s office to see what they could do about ol’ Sunrocket.  He was not amused.

New York Legal Update, not ordinarily inclined toward editorials, has come out in support of the new and controversial Avvo lawyer ratings.  While I can’t argue with many of the points made, particularly the absurdity of the class action against Avvo which is just plain embarrassing, its ultimate conclusion misses the mark.

Before I explain why, I should say that Paul Bloom, one of the co-founders of Avvo, posted a comment here about the qualitative vs. quantitative issue I raised when Avvo first came online.  Afterward, I invited Paul to be interviewed about Avvo, thus giving him an opportunity to address the comments and criticism leveled at Avvo.  No response to my invitation.  To the extent that I was initially impressed by his willingness to expose himself to the scrutiny of the bar and defend Avvo’s system, it appears that the heat is too much for Avvo and they’re hiding under the kitchen table.  At least for now.

So Tom Schwartz, honcho of New York Legal Update, takes the position that anything that helps clients find the right lawyer is a good thing, and that we need more, not less, mechanisms to rate lawyers.  While I can’t argue with either point, it begs the question of whether Avvo ratings help or mislead.  I agree whole-heartedly that connecting clients with the right lawyer is a great thing.  I agree completely that many (most?) clients, particularly in my field of criminal defense, have no clue how to identify the right lawyer, or how to vet lawyers for competency, and find themselves making a horrible mistake in perhaps the most important matter in their lives by retaining the wrong lawyer.  A mistake they will be forced to live with for many years. 

But does Avvo solve anything?  Avvo, by relying on a mathematical calculus for its ratings, inherently ignored the qualitative aspect of lawyering.  I suppose that in non-litigation areas, that may work.  But when you need a litigator, it omits the critical elements necessary to make an informed choice.  Still, it rates the lawyers on what is arguably irrelevant bases and provides a rating.  Hooray, I’m a 10!  But what if a lawyer, rated a 10, has never tried a serious felony to verdict?  Suddenly that 10 rings hollow.  Worse yet, it may steer a client away from a lawyer with an 8.7 rating, but who has tried 50 murder cases to verdict, in favor of a lawyer with a 10 rating who has never tried a case to verdict but has written a few law review articles.

So the problem is that a client, the consumer of legal services, can be mislead by the rating, and pushed to retain an attorney who has a higher number but lacks the skills needed to serve the client.  Nowhere in the Avvo ratings is this accommodated.  To say, as Avvo does, that “no client should rely solely on Avvo ratings” is disingenuous.  Either the ratings serve a purpose or they don’t.  If Avvo ratings are intended to be but one factor in the retention decision, where’s the big disclaimer, in bold red type, that says “IN MAKING YOUR DECISION TO RETAIN A LAWYER, DO NOT RELY ON THESE RATINGS AS THEY PROVIDE NO INFORMATION ABOUT A LAWYER’S ACTUAL SKILLS!”  Of course, if they had such a disclaimer, why would anybody look?

And that’s the point.  Either the rating means something or it doesn’t.  If it can’t account for the qualitative distinctions between lawyers, then is presumes lawyers to be fungible.  That may be true for lawyers in some areas of practice, but not mine.  For clients who retain happy, smiling, glad-handing criminal defense lawyers because they are “nice”, only to find themselves in prison for the rest of their natural lives, this is a hard lesson.  For clients who pick a lawyer based on their Avvo rating, the lesson may be no different.

So I agree with Tom Schwartz completely that clients need a better way to decide which lawyer to retain.  I just don’t buy Avvo ratings as being the answer.  Unless Paul Bloom convinces me otherwise.  I’m still waiting.

Mark Bennett (with 2 “T”s), at Defending People, writes that one of the blessings of Texas criminal law is the snitch corroboration rule.  The fact that they need a  rule about snitches is itself a very sad commentary.  So, let’s take a look and use the opportunity to make fun of Texas at the same time.

In the early days of the Clinton administration, the idea of flipping your client (for non-criminal defense lawyers, that means urging your client to become to cooperate with the government and become a confidential information) was unthinkable.  Snitches, or rats as they are known in polite society, were the lowest of the low.  These were criminals who were not man enough to face the consequences, and hence went crying like little girls at the very thought of paying the consequences for their conduct and were willing to put their brothers and mothers in jail rather than take the weight.

I’m sure everyone remembers Berretta, the TV show with Robert Blake (who never killed anyone. Really!) saying those famous words, “If you can’t do the time, don’t do the crime.”  Well, that was about as effective as Nancy Reagan saying, “Just say no”. 

One day, there was a rush to the courthouse door, with snitches and their snitch lawyers pushing and shoving to be the first one to get to the US Attorney to flip.  Bear in mind, there was no god-given right to be accepted as a rat.  Last man there was the one to get screwed, because he had nobody left to snitch on.  There would be a room full of snitches and snitch lawyers, all with there hands raised, yelling “I was here first” and “I’m the biggest rat” and “Me! Me! Let me rat first!” 

It was a train moving full speed, wiping out any chance of beating an indictment.  It was the domino theory of snitches.  But most importantly, it was drive by the defense lawyers.  A coterie of criminal defense lawyers would take their fees and then run over to the US Attorney’s office like good little errand boys to serve up their clients on a silver platter.  Ah, those were heady days, when a lawyer could grab a decent fee, do little to no work and give their client (and everyone their client ever knew) up without breaking a sweat. 

Soon, the very idea of going to trial was almost an anachronism.  For some older lawyers, including yours truly, for whom flipping was neither a panacea nor a means to a quick buck, we were disgusted.  We watched this shameful conduct, trying desperately to hold conspiracy cases together so that we had a chance to win.  Only to watch the weak link lawyer go behind our backs to the government and beg to do their bidding. 

On those rare occasions when we could keep the group together, we won some stunning victories.  It always depended on one factor:  who the other lawyers on the case were.  If we had real trial lawyers, we had a chance.  But real trial lawyers became fewer and farther between.  Mind you, they never told their clients when they were retained that the plan was never to win. Oh no, they would talk a good case to get the retainer, but as soon as the wad of cash found its way to their pockets, they would be on line to take a number, just like at the deli counter, to flip their client. 

Return to the present:  And so today we have rules about snitch corroboration.  Snitches have become such an integral and accepted part of criminal law that legislatures have made rules about them.  For younger lawyers, they can’t conceive of a time when every conspiracy didn’t have a rat.  They similarly can’t conceive of a time when a conspiracy case, the “darling of the prosecution,” was tried and won.  Caselaw requires criminal defense lawyers to advise clients that flipping may be the only way to ameliorate the draconian sentences under the federal sentencing guidelines, lest they be guilty of ineffective assistance of counsel. 

A good friend and exceptional appellate lawyer, Diarmuid White, used to give a CLE lecture about the ethics of turning a client into a rat.  He contended that by doing so, the defense lawyer becomes the government’s enabling butt boy, violating his oath of zealous representation in favor of counseling his client how to be as compliant to the government’s will as possible.  He had a point.  But then again, he’s an old time lawyer like me, the kind who actually tried to defend their client and win the case.  And he’s not from Texas.

The United States Supreme Court just issued its unanimous opinion in Brendlin v. California, written by Justice Souter, reversing the Supreme Court of California and holding that a passenger has standing to challenge the baseless stop of a car as an unconstitutional seizure of his person.

While it has long been recognized that a traffic stop is a seizure of the driver of a vehicle, the Court has never directly addressed whether the same holds true for a passenger in the vehicle.  That question is now settled.  In this case, the State of California conceded that the police had no reasonable suspicion to stop the car (a separate problem that appears to have gone unnoticed by all), but argued that since the passenger does not submit to police authority when a car is stopped, he is not “seized” within the meaning of the Constitution.  Justice Souter said “nope”, finding that the passenger is just as stopped as the driver. 

It’s summer, so read.  Order a copy of Saira Rao’s debut novel, Chambermaid.   Amazon says:

The devil holds a gavel in this wickedly entertaining debut novel about a young attorney’s eventful year clerking for a federal judge. Sheila Raj is a recent graduate of a top-ten law school with dreams of working for the ACLU, but law school did not prepare her for the power-hungry sociopath, Judge Helga Friedman, who greets her on her first day. While her beleaguered colleagues begin quitting their jobs, Sheila is assigned to a high-profile death penalty case and suddenly realizes that she has to survive the year as Friedman’s chambermaid — not just her sanity, but actual lives hang in the balance. With Chambermaid, debut novelist Saira Rao breaks the code of silence surrounding the clerkship and boldly takes us into the mysterious world of the third branch of US government, where the leaders are not elected and can never be fired. With its biting wit and laugh-out-loud humor, this novel will change everything you think you know about how great lawyers, and great judges, are made.

I was a student of Prof. Myres S. McDougal in law school.  He taught jurisprudence.  To this day, I think of Professor McDougal often.  Even though he is no longer with us, I want to say thank you.

Prof. McDougal was emeritus at Yale Law School, slumming when he taught my class.  On day 1, he made a short speech that I will never forget.  He told the class not to worry about their grades (something law students tend to obsess over); not to bother taking notes.  Just listen.  You won’t understand what I’m talking about for a few years, but if you pay attention, someday you will.  Most of the students took this as an opportunity to nap.  I can’t explain why, but I listened.  Prof. McDougal was quite brilliant.

What I learned was a holistic approach to jurisprudence and the law.  That we, as attorneys, must view what we do in the broadest context, including every aspect and influence in our approach to lawyering.  It’s not just about the facts and the law, but the judge and what he ate for breakfast that morning, and the shoes our clients wear to the trial, and the t-shirt worn by juror number 4.  Our arguments may be derived from natural law, or normative law, according to how we understand the decision-maker to be influenced, and that we should never lose sight of that point.  We need to notice everything, think about everything, and factor it all into a world-view of what we do.

While any particular influence may not ultimately prove to play a role in our efforts, it similarly may and we will never be able to identify what factors proved critical, or even influential.  But we have no reason to ignore any factor and do so at our own risk.  The very practical ultimate goal, the persuasion of the decision-maker to decide in our favor, is the culmination of a philosophy and approach that incorporates every tool and weapon at our disposal.  If we go into battle unarmed, we have no one to blame but ourselves.

In a sense, Prof. McDougal’s words sound obvious, and yet rarely heeded by lawyers.  It can be an enormous effort to remain forever vigilant.  Prof. McDougal’s words ring in my ears all the time, and I take great pains to follow his advice.  He was right; I didn’t have an appreciation of what he was trying to tell us so many years ago.  But over time, I came to fully appreciate the importance of his message.  Thank you Prof. McDougal.

Duke DA disgrace Mike Nifong has been disbarred.  For a painfully thorough discussion, see Durham-in-Wonderland by KC Johnson, ironically a Brooklyn College history professor.

No reason to rehash the story.  We all know it.  But the question remains, what does this mean for the rest of us?  I foresee two things:

1.  Sitting District Attorneys are no longer immune from scrutiny and can be held accountable for their conduct.
2.  Unless the impropriety by a sitting District Attorney makes headlines, it will be swept under the rug like it’s always been.

So while defense lawyers will be the perpetual target, particularly if you’re too good at what you do, the likelihood of a prosecutor being Nifonged remains slim.  And life goes on.

We’ve got a throwdown.  Mark Bennett from Texas thinks that we’re a bunch of namby-pamby pretenders.  In response to my post that peripherally mentions Texas lawyers whining about “expunction” (some made-up Texas word that’s supposed to mean “expungement”), Mark provides a laundry list of why criminal defense is better in Texas than New York.

That’s right.  Better in Texas, where there are enough capital executions for a daily game show.  Where criminal defense lawyers can nap through trial with impunity.  Where the judges are more likely to pack heat than the defendants (actually, it’s probably a draw).  The State that gave us Tom Delay! 

Are you gonna let some yahoo in Gucci cowboy boots skewer New York criminal defense lawyers on a longhorn?  Let’s have your comments about why New York criminal defense lawyers have it better than Texans. 

One more thing, this Bennett guy writes:

There’s a barbecue restaurant here in Houston, Goode Co. Barbeque. They purvey some of the best Texas-style barbecue ( Wikipedia ) in the state. [talk about damning with faint praise!}  They make a pecan pie that’s second only to mine, and they will ship it anywhere; It’s not easy to read in the picture, but the inscription painted above their logo is “You might give some serious thought to thanking your lucky stars you’re in Texas.”

You think they mean that Texas jails are nicer than the Tombs or the Rock?  Extra points if you work in something about Texas “BBQ”.

I was driving along yesterday when I noticed that the guy in the next lane, about 100 yards ahead of me, was driving eratically.  Speeding up, then slowing down.  Weaving over the lines, coming into my land then across the double yellow line into the oncoming traffic lane.  It was about 8:30 in the morning. 

“Oh crap,” I thought.  He’s drunk.  My son was in the car with me, and I pointed it out to him so he would recognize the danger as well as the impact of drinking and driving.

We came to a traffic signal, and I pulled alongside.  There was a middle aged man in the car.  He had a cellphone next to his head and was talking away.  He wasn’t drunk.  He was on the phone.

Society has become intolerant of drunk driving.  Whether this reaction is appropriate is a subject for another day.  But this same society views driving with a cellphone glued to a driver’s head, illegal in New York, as an inconsequential socially acceptable act. 

Three points need to be made, and made as clearly as possible. 

1.   Cellphone use while driving is as dangerous as driving drunk. 
2.  Death at the hands of a driver on a cellphone is every bit as dead as at the hands of a drunk driver.
3.  There is no one you need to speak with so desparately that you have the right to endanger the life of another person.

The same people who will rail with inflammatory rhetoric at the evils of driving drunk will happily cruise in their SUV while talking non-stop on a cellphone.  You may not think you’re driving poorly, but neither do most drunks.  The rest of us see it pretty clearly. 

Though illegal, it is so pervasive that one would think you get free airtime when you talk while driving.  I see it constantly, and I rarely see anyone stopped for it.  The cops take it no more seriously then anyone else, apparently.  But drunk driving is morally unacceptable, so it is the target of increasingly harsher laws and penalties.  If only we would come to grips with the fact that you can cause the death of an innocent person just as easily when driving while talking on a cellphone.  Get off the phone.  Whoever it is that wants to speak with you, or with whom you want to speak, you can call them later.  Let me get home alive.

I was reading Jamie Spencer’s blog, Austin Criminal Defense Lawyer, where he writes about the importance of “expunction”.  Expunction?  What’s his beef?  In New York, we call expunction by a different name, expungement, and the significance of it is that we don’t have it. We would like it.  We think it would be the right thing to do.  But it doesn’t exist here. 

And yet, there’s Jamie, and Mark Bennett commenting about the unfairness of it all, complaining about expunction.

 

Personally, I think its a bit bizarre when Texas law is a step ahead of New York when it comes to something like expungement.  Remember, this is the state that puts defendants to death when their lawyer is fast asleep at trial. 

But the point of this post is that there are significant differences in the law and practice from place to place.  Having tried cases as far away as Anchorage, Alaska, I’ve come to realize and appreciate that understanding local practice matters.  I had a “My Cousin Vinny” moment when I traveled down to Bowling Green, Kentucky to do a case.  I opened to the jury with, “You probably can’t tell, but I’m not from around here.”  Got a good laugh out of them, which is always important.  Happy juries have a harder time convicting. 

Obviously, local differences abound and it would be impossible to mention, or even recognize, all of them.  But what is important is the recognition that they exist and they matter.  While I naturally believe that I am the best trial lawyer since Clarence Darrow, and there’s no successful trial lawyer who can believe otherwise, I always work with local counsel when I go to some foreign venue who can show me the local ropes, help me with local customs and even tell me what’s funny there and what’s not.  Humor in New York isn’t always funny in Galveston. 

This is true in both state and federal courts.  Even though federal law is (theoretically) the same across the country, the practical differences are often staggering and assumptions that life the Southern District of Florida is the same as the Southern District of New York can lead to some foolish mistakes.  The jurisprudence of criminal defense demands that we understand where we fit into the bigger picture.  I don’t bet my clients’ lives on assumptions, and they tend to be appreciate it.

So as you travel through the blawgosphere and read about how things are done in one place or another, never confuse the good life in Texas (with this expunction issue) with the hard life in New York (where your lawyer is required to be awake throughout the entire trial).  Take the information with a grain of salt (Lawyerus Emptor) and bear in mind that not everything on the internet will apply to you.