A lawyer for Mel Weiss is miffed, perhaps rightfully so.  And if he’s miffed, I’m miffed. 

I posted about the more than 275 letters (the number varies with each account, so I’m sticking with the original 275 number) submitted in support of Mel’s efforts to humanize himself to California District Court Judge John Walter.  My post was based on Dan Slater’s  WSJ post.  Now, Slater is under attack by Kenneth White, one of Mel’s lawyers, who saw Slater’s post the same way I did, as damning Mel Weiss with faint praise.

But your selective description of the letters seems calculated to belittle Mr. Weiss’s supporters and to sensationalize his position and their support, not to describe that support fairly. By choosing to highlight two isolated references to minor instances of kindness – one related to a watch, another to a pair of boots – you clearly seek to portray the testimonials as a whole as banal or comical. A fair reading of the letters would not permit that interpretation.

Banal is the perfect description.  I wish I had thought of it first.  White wrote to Slater to challenge his post that belittled the support shown Mel and, he argued, intentionally subjected the defense to ridicule:

Your emphasis on the boots and the watch appears calculated to encourage ridicule instead – precisely the sort of ridicule you drew in comments to your posts. I note that your posts have also drawn hostility and even overt prejudice — such as the commenter who describes Mr. Weiss as a “Holocaust industry shyster.” That is the foreseeable result of your chosen spin.

And indeed, Slater’s post did seem calculated to encourage ridicule.  White demanded a correction:

Though your emphasis has been unfair and demeaning, it is not too late to remedy that injustice. Please consider a supplemental post highlighting some of the other letters that more fairly represent Mr. Weiss’s support. 

Jamie Heller (notably not Dan Slater) posted White’s letter in full at the WSJ law blog.  That’s not an insignificant concession on the part of the Wall Street Journal.  Of course, it’s not a retraction either.  But this is what happens when money butts heads with money. 

In the introduction to the publication of Ken White’s letter, Mel is described as a “plaintiffs lawyer.”  Those two words are the WSJ equivalent to calling him the scum of the earth.  There is no more demeaning epithet amongst the WSJ crowd than to represent plaintiffs.

But their Murdoch perspective aside, the handling of Mel Weiss’ sentencing letters left the door open for ridicule, and this comes as quite a surprise given how well Ben Branfman did on the plea negotiation. 

Lesson 1 in media relations for lawyers is that you have no control over what the media will say about your client.  Ever.  Mel’s lawyers should have known, must have known, that the letters submitted on Mel’s behalf would be subject to scrutiny by a less than adoring media.  With this in mind, the handling of support letters, straddling the useful and the unhelpful, the important and the inconsequential, is critical. 

It’s hard to write a helpful letter in support of a defendant at sentence.  It’s not the sort of thing one does every day, so most people have not perfected their technique.  Not only must the lawyers provide guidance as to how to craft the letter, and direct writers to focus on information that conveys the sort of things that will help their cause, but they must scrutinize the letters written before they are provided the Court to make sure that they aid the cause. 

This sounds highly manipulative, and indeed it is.  But it’s not that the content of the letters aren’t true and accurate.  Just that the letters, like everything else involved in defending someone, are sought to further a purpose.  The government’s purpose is to inform the court about the crime.  The defense’s purpose is to inform the court about the human being and the good things he’s done.  The defense has no obligation to submit letters showing the defendant to be a creep.

So the proffer of letters showing Mel to be banal (see, I got to use the word too!) isn’t Dan Slater’s fault, and the fact that the door to ridicule was opened by offering such examples of good deeds as buying watches or womens boots falls on the shoulder of the defense lawyers.  They should have known better.

It’s possible that Ken White had no control over the submission of these letter, and that they were sent by supporters directly to Judge Walter on Mel’s behalf.  If so, then Mel deserves a refund of his legal fee.  No competent defense lawyer has letter writers submit directly to the court.  While letters should be addressed to the judge, they are sent to the lawyers, who then vet the letters for content. 

Submitting letters directly to the judge is facial malpractice, and courting unbelievable disaster.  I’ve seen people who defendants believe to be their beloved friends write scathing letters of hatred about them.  I’ve seen letters from people who include lines like, “for a jew, he’s a good Christian.”  You never know what people are going to write until you see the letters.  Suffice it to say, some letters never see the light of day.  Based upon the letter links in Slater’s post, it appears that the letters went through the attorneys, as they should have.

Given the fact that Weiss had more than 275 letters of support, many from very prominent individuals (which is another common mistake, where people think that prominence, rather than substantive information, is more helpful in humanizing a defendant), was it necessary to include two letters that made Mel appear particularly banal?  Would the judge have said to himself, “Hey, he’s only got 273 letters, so I guess he doesn’t have enough friends?”

Mel Weiss carved out a very significant niche for himself in the law, gathering some powerful friends as well as some very powerful enemies.  It’s brought him substantial wealth, but it came at a price.  Mel is not some old-guard, gin-drinking white shoe lawyer.  He was a street fighter, and he apparently wasn’t above buying his way into the cases he wanted to control. 

We can only hope that Mel did some good with the cash he took off the top of class actions, since the unnamed class of plaintiffs rarely got enough to buy themselves a beer to celebrate their victory.  I’m not denigrating the purpose of class action suits, but there is a stink to the fees they generate when contrasted to the damages spread amongst the great unwashed class. 

Locally, Mel Weiss has done little to help others.  He’s never seen at local charity events, nor is his name listed amongst the donors of worthy local charities.  Since he’s my neighbor, I know.  But that doesn’t mean that Mel doesn’t give to others, to those he deems more worthy.  That’s a personal choice, and while Mel could do a little something for those close to home, I don’t begrudge anyone their personal choice in where to spread their love. 

While I haven’t read through all the letters submitted (though I have read the initial crop, which should reflect the best letters available), they don’t impress.  They speak to Mel’s “commitment” to represent the poor and downtrodden in class actions.  Of course, Mel was very well paid for that commitment, reducing its significance to less than nothing.  Indeed, this “commitment” was the root of his indictment.  Didn’t anyone think of that?

The first dozen letter contain conclusory assertions of Mel’s generous and charitable nature, but fail to note a single instance in support of the conclusion.  This is a problem.  Plenty of hyperbole, but essentially no substance whatsoever.  Way in the back, there are letters that provide detail of Mel’s acts of charity, including one from Beau Dietl (who has a way of being gratuitously self-aggrandizing even as he tries his darndest to say something nice about someone else).  But letters stuck way in the back tend to add mere weight, not substance, to the submission.

Notably, Ken White’s letter to the Wall Street Journal really doesn’t help matters, as it makes the point as clearly as Dan Slater’s post.

By choosing to highlight two isolated references to minor instances of kindness – one related to a watch, another to a pair of boots – you clearly seek to portray the testimonials as a whole as banal or comical. A fair reading of the letters would not permit that interpretation. You could have chosen to emphasize Harvard Law School professor Arthur Miller’s comments about how Mr. Weiss’s efforts improved access to justice for the poor, or Judge Stanley Sporkin’s comments about how Mr. Weiss’s efforts were an essential supplement to inadequate SEC regulatory activities.

It’s hard to say for sure what Mel Weiss has done for others with the wealth he accumulated from his class action suits.  He’s helped personal friends, and it appears that he’s been a supporter of some charities despite the scarcity of detail.  Beyond that, who knows.

Lesson number 2 in media relations for lawyers.  Never send a letter you don’t want to see in print.  Whether Ken White has helped Mel’s cause in stirring this up again is hard to say.  Personally, I wouldn’t have done it.