Regular readers may wonder why, after numerous posts on the evils of the Lori Drew prosecution, I haven’t been blogging my heart out (yes, I have a heart; it’s shown in a recent echocardiogram photo taken as proof) about the trial.  My problem is that the case is important because of its implications for the abuse of Section 1030 of the Computer Fraud and Abuse Act, not because Lori Drew is a person deserving of great sympathy.  She’s not.

As anticipated once Judge Wu decided to permit the government to introduce evidence about 13 year old Megan Meier’s suicide, the trial testimony is all about prejudicing the jury, clouding the issues and obtaining a guilty verdict because someone must pay for the harm done here.  As Gideon succinctly put it :

Why is Lori Drew so screwed?

Because almost all the testimony on the first day focused on Megan Meier’s suicide.

While others are reporting on the details of opening and witness testimony, it ignores the question of what this case is doing on trial at all, given its legal posture.  Once we get past the legal question, however, and taking testimony from witnesses at trial has nothing to do with legal questions, it is an entirely different case.  It is a case of adults conspiring to inflict harm on a child. 

The factual defense is that Lori Drew didn’t “pull the trigger,” her alleged words, that pushed Megan Meier to hang herself with a belt in her closet after being told that the world would be better off without her.  Ironically, those words were written by the government’s witness, another reminder that the most heinous people usually end up working for the government.  Birds of a feather, perhaps.

And the government has conceded that Drew never actually read the Myspace terms of service, the ones she is alleged to have knowingly violated.  Dan Solove at Co-Op wonders whether this concession will result in a directed verdict of acquittal.  If that were a serious question, he ought to wonder why Judge Wu reserved decision on pre-trial motions to dismiss, plus his requested additional briefs on a number of significant legal issues, while pushing forward with the trial.  A bold judge makes decisions in a timely manner; motions to dismiss are decided before trial, not afterward.  Not if they are to be taken seriously.

The cart is now way out in front of a whole team of horses, but if Judge Wu elected to dodge the legal issues up front that should have, in any legally sane world, been decided prior to trial, what rational theory would suggest that he’ll suddenly turn into superjudge and toss the case without taking a verdict?  Judge Wu wants the jury to do his work for him, and the jury’s work was irreparably tainted when he decided to let in the suicide testimony.

Perhaps Judge Wu wants to air this ugly mess out in public, allow those who have suffered the loss of a lovely young woman a catharsis.  Maybe he felt no desire to protect Lori Drew from the public shaming that comes naturally with this trial, and indeed saw the offering of testimony against her as a proper means of satisfying those base needs that would otherwise be overshadowed by the legal problems with the case. 

Judge Wu, after all the evidence has been offered, could then flex his judicial muscles and toss the case.  But it seems unlikely.  It would be an extreme plan, a scheme even, if that was the judge’s approach.  Judge’s have no business being so Machiavellian in approach, and there is nothing in Judge Wu’s background to suggest that he’s a schemer.

So here’s the trial in a nutshell.  

Prosecution:  Suicide, suicide, suicide; dead young woman because of Lori Drew.

Defense:  Didn’t read Terms of Service.

Which side will evoke a reaction in a jury of normal people?  There is no real factual dispute to be tried.  That’s why this case had no business going to trial.

Solove asks whether the CFAA will, in light of the testimony of the government’s witness that Drew never read the TOS, be held a strict liability statute.  This isn’t a question to be answered during, or after, a trial.  But if there’s a conviction, and it’s upheld, you can bet that everyone with a website of any sort, this blawg included, will start crafting some really fascinating terms of service so we can trap the unwary.

And no one using the internet will ever be safe again.

Via Doug Berman, the amici brief in United States v. Polizzi is a remarkable piece of work.  This is the case where Eastern District of New York Judge Jack Weinstein, after receiving a guilty verdict in a kiddie porn case, decided that he had erred by his failure to inform the jury that their verdict would require him to impose a mandatory minimum prison sentence, 

As discussed here, Judge Weinstein concluded that denial of this information to the jury, the buffer between the government and the individual, impaired the defendant’s rights under the 6th Amendment.

The National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums, were granted leave to appear amici curiae, with the brief prepared by Wilmer Cutler Pickering Hale and Dorr.  The meat of the brief is a very well developed and documented argument that the right to a jury, as understood and demanded by our forefathers, particularly the anti-federalists who insisted on inclusion of the Bill of Rights, that was fully aware of the penal consequences of their verdict. 

As this colonial practice and understanding make clear, the right to a jury trial embodied in the Sixth Amendment assumes, as an essential characteristic, that the jury would possess all accurate available information about crimes and punishments that will aid its decision-making. See, e.g., United States v. Glick, 463 F.2d 491, 492, 494 (2d Cir. 1972) (judges must correct possible juror misimpressions of sentencing rules; conviction vacated where court answered “yes” to the jury’s query, “[c]an the jury in its verdict recommend leniency?”). Such information is critical if “an open and public discussion of all causes” submitted to the jury for verdict is to occur.

The brief spans a broad array of colonial sources to show that juries then, as opposed to now, realized the practical consequences of their decision, and were thus able to make choices, such as partial verdict, in order to keep the hot and panting prosecutors under control.

All of this begs a question, as I read the fascinating brief, whether the real issue is whether the court has the authority to instruct the jury as to the existence of mandatory minimum sentencing for a particular offense, or whether the defendant has the right to a jury that possesses all the information required to render a proper verdict.  If the former, as argued in the brief, then the decision would be left to the judge as to whether, and to what extent, a jury should be told of sentencing consequences.

If the latter, however, then it would seem that the authority to inform the jury is not the province of the judge at all, but rather the defendant and, perhaps, the jury.  if so, then defense counsel should be able to decide whether to inform the jury that a guilty verdict will put a defendant in prison for some prolonged length of time or some mandatory minimum period. 

I had a chat about this yesterday with Richard Willstatter, who is the co-chair for the NACDL amicus committee (and my lineal successor once removed as amicus chair for the NYSACDL) and posed the question whether the same arguments used here would apply with equal force to the defense’s authority to inform, and thereby use, the sentence as part of its argument to the jury.  Richard didn’t know the answer (nor do I), but found it a very interesting proposition.

While this point is neither applicable nor involved in the Polizzi case, and extends the historical argument into other areas that may well push a federal judge to the breaking point, my read of this brief suggests that there is good reason to believe that the defendant’s right to a jury under the 6th Amendment includes the right to a jury that possesses a full appreciation of the consequences of its decision and, most importantly, is not operating in a vacuum or under a misapprehension.  The only way to accomplish this is to make sure the jury is aware of the sentencing consequences of its verdict.

While those of us on the outside harbor some generic fear that “government”, that big, amorphous, monolithic monster that threatens to smother us in our sleep out of its purported love and devotion, is busy doing evil things, we occasionally learn that there’s a whole ‘nother world going between jurisdictions on the inside.  Enjoy it, since it’s the only thing that stops government from effectively emasculating the Constitution.

The New York Times reports that the feds and the New York Police Department are busy sending nasty letters to each other over who should be empowered to conduct secret wiretaps.

In his five-page letter on Oct. 27, [NYPD Police Commissioner Raymond] Kelly wrote to Mr. Mukasey charging that the F.B.I. and Justice Department had thwarted the Police Department’s intelligence efforts in two specific cases. He wrote that federal authorities were “constraining” critical terrorism investigations in New York and said the federal government “is doing less than it is lawfully entitled to protect New York City,” concluding that “the city is less safe as a result.”

While I can’t prove this, I hear that Mukasey’s original decision was to limit his response to “bite me.”  He’s not as verbose as Kelly.  He was ultimately talked out of it and instead chose to go the “more pages means a better argument” route.

Mr. Mukasey, in a seven-page retort, dated Oct. 31, dismissed what he called Mr. Kelly’s “alarming conclusions” as factually incorrect. Mr. Mukasey wrote that Mr. Kelly was in effect proposing that the Justice Department and the F.B.I. disregard the law, as spelled out in the Foreign Intelligence Surveillance Act of 1978.

Not only would your approach violate the law, it would also in short order make New York City and the rest of the country less safe,” wrote Mr. Mukasey, a federal judge in Manhattan before he became attorney general.

Some might question whether Mukasey was being disingenuous, contending that only the DOJ is worthy of covert wiretapping because it, unlike the NYPD, is so trustworthy.  Not me, though.  This smacks of the basic jurisdictional disputes that have plague law enforcement forever.  As bad as some might think the FBI are when it comes to being concerned for the constitutional rights of citizens, the feds believe with absolute certainty that the local cops, even when the locals are the NYPD, compel the use of the word “keystone” before their official name.

Some will be angered that these disputes impair law enforcement’s ability to protect us from threats.  Not me.  But for these turf wars, and the internal disgust that one arm of law enforcement has toward others, the potential harm to our freedoms is mind-boggling.  One of the few things protecting the Constitution in this atmosphere of fear is the fact that none of the children in the law enforcement sandbox want to play with each others. 

While it’s true that the Department of Justice has the wherewithal to do plenty of harm on its own, the aid of the NYPD being unnecessary when it comes to pervasive secret eavesdropping, don’t underestimate the impact of another 350,000 fingers in the pie. 

Let the boys squabble amongst themselves all they want.  It keeps them busy and away from the rest of us.

H/T Orin Kerr at VC

When the ABA Journal went online, it did a pretty good job of it.  Good up to date legal news.  Coverage of blawgs, good and bad, with relative equanimity.  Easy on the eyes.  But it was still the ABA, in the sense that it was kinda lifeless.  No personality.  Bland-o-rama.  Then came Ellen Barshevsky.

Ellen Barshevsky, a persona that some unknown wag adopted to play in the comment sandbox, decided to have some fun with the ABA.  Her comments, written in a semi-literate, self-ignorant yet strangely aggrandizing fashion, made some furious and other laugh out loud.  Some thought that the shtick wore thin over time while others continued to enjoy her messing with everyone’s head. 

For an example of Barshevsky comments, as well as others comments about Barshevsky, check out this otherwise vapid story about a new Skadden partner’s “secret to success.”  Subtract the Barshevsky comments and there would be no reason in the world to read the story.

Over time, the ABA Journal became more about what Barshevsky would post in the comments then about the stories themselves.  The ABA Journal finally decided that enough was enough, with editor Molly McDonough going so far as “announcing” that Ellen Barshevsky was banned from commenting.

After reviewing our last week of comments, we have decided to become more assertive with our comment moderating.

We will more readily exercise our authority to remove inappropriate comments, those that are particularly off-topic and those that generally flout the rules of civil discourse and persistently disrupt the comment stream.

Specifically, we have tolerated for some time, often to the delight, but increasingly more often to the dismay of our regular readers, what we can only assume is the fictional “Ellen Barshevsky” and her various personas.

As of this morning, “Ellen” has formally been banned from commenting on the site.

When the banning of a commenter requires a public announcement, you know the commenter has made a major impact.  As the comments to the announcement show, the banning has divided the ABA Journal audience.  Ellen certainly had her fans.  The fact that it even caught Bob Ambrogi’s eye and ended up in a Legal Blog Watch post tells how big the impact of one commenter can be.

Molly’s decision was correct and important for two reasons, notwithstanding Ellen’s popularity amongst many.  First, the game being played by Ellen Barshevsky was at the ABA Journal’s expense.  It is not up to commenters to seize control, even if others think it’s a hoot and stand behind her.  The website is the ABA Journal’s home, not Ellen’s, and the ABA Journal gets to call the shots and control what is, and is not, appropriate.  It cannot allow a commenter to usurp control of content and atmosphere.

Second, the ABA Journal is not, nor has it ever indicated any intention to be, a legal humor blawg, like Legal Antics.  Indeed, it’s hard to imagine that being the image the ABA would seek to project.  It’s not that there’s anything wrong with that, but it’s just not the ABA.  Barshevsky was funny, at least in the beginning if you believe her later detractors, and brought some life to the ABA Journal, but it wasn’t the life that was needed or desired. 

The good news is that Ellen Barshevsky hasn’t gone away, but moved to her own home in the blawgosphere.  That’s right, she (assuming it’s a she) now has her own blawg, subtitled “THIS is a blog ABOUT me. I hope YOU enjoy it as MUCH as my BOYFRIEND.”  It can be quite funny, but it’s also easy to see how it could get on your nerves after a while.  At the moment, it’s a one-trick pony based on the Barshevsky persona, and whether that will be enough to keep people amused has yet to be seen. Humor is a rather personal thing.

If you’re a fan of Ellen Barshevsky, the new blawg will have you rolling on the floor.  If you’re not, then you don’t have to read it.  And that’s how it should be.

Dick Cheney is indicted by a Willacy County, Texas, grand jury.  No, not for shooting campaign contributors in the face, but for abusing prisoners.  No, not Gitmo prisoners, but federal inmates in a privately operated prison run by the Vanguard Group, with which the Vice President was involved. 

Aside:  Could this prison be the secret location where Cheney hid whenever the country was under attack or reporters sought comments?

According to the AP Report :

Cheney is charged with engaging in an organized criminal activity related to the vice president’s investment in the Vanguard Group, which holds financial interests in the private prison companies running the federal detention centers. It accuses Cheney of a conflict of interest and “at least misdemeanor assaults” on detainees because of his link to the prison companies.

Not exactly compelling clarity as to what the Veep is accused of doing.  That doesn’t mean that the indictment is a joke, but it does raise a question about what Cheney, as an invester, had to do with misdemeanor assaults on detainees. 

In the meantime, the lawyer for his co-defendant, Alberto Gonzalez (yes, that AG), wasn’t impressed:

Gonzales’ attorney, George Terwilliger III, said in a written statement, “This is obviously a bogus charge on its face, as any good prosecutor can recognize.” He said he hoped Texas authorities would take steps to stop “this abuse of the criminal justice system.”

Is it just me, or does it seem that Gonzalez lawyered up awfully fast on this one?  I mean, the indictment has yet to be signed.  Then again, as every smart criminal knows, it’s always good to have a lawyer at the ready.

What makes this scenario messy, aside from the fact that the perps happen to be the Vice President and the former Attorney General, is that the local District Attorney, Juan Angel Guerra, has some problems of his own.

Guerra himself was under indictment for more than a year and half until a judge dismissed the indictments last month. Guerra’s tenure ends this year after nearly two decades in office. He lost convincingly in a Democratic primary in March.

Now who am I to impugn his decision to present this case to a grand jury, but then this isn’t your run of the mill South Texas prosecution.  Or is it?

Willacy County has become a prison hub with county, state and federal lockups. Guerra has gone after the prison-politician nexus before, extracting guilty pleas from three former Willacy and Webb county commissioners after investigating bribery related to federal prison contacts.

Last month, a Willacy County grand jury indicted The GEO Group, a Florida private prison company, on a murder charge in the death of a prisoner days before his release. The three-count indictment alleged The GEO Group allowed other inmates to beat Gregorio de la Rosa Jr. to death with padlocks stuffed into socks. The death happened in 2001 at the Raymondville facility.

So Guerra may be crazy, but is he crazy?   It is way too early in a case that will assuredly test the borders of politics, law, media and public tolerance, to draw any conclusions.  But if I was a network executive, I would seriously considering signing this one up for a movie of the week today, because by tomorrow it will be too late.

If I may interject one somewhat technical legal question, what authority does the Great Republic of Texas have to indict a sitting American Vice President?  The bad news for Cheney is, if he gets the early morning knock on his door at the Naval Observatory, chances are slim that Texas allow him to contact the United State Consulate before imposing the death penalty.  This case has it all. 

I wonder what Sean Hannity thinks of this?  He’s a very law and order sort of guy, you know.

From J-dog, it appears that getting cheap stuff at Target involves a hidden price that some may prefer not to pay.  After the fiasco that followed Target’s spreading the word that their well-trained employees are unfamiliar with United States currency, such that they defame their customers for fun and profit, we now learn that Target’s sales-geniuses presume to psycho-analyze their customers when they expect a refund.

From Xavier Thoughts :

How does a perfectly sane 79 year old lady go against her will from the local Target to the emergency room for a mental evaluation? Try returning two shirts that did not fit and expecting the money you paid in return rather than a gift card.

Crazy? Yes, in the eyes of “Mr. Nasty,” the manager of the Super Target in Plymouth Minnesota, that constitutes the need for a mental evaluation.

Well, let’s slow this down a moment.  It’s not like the Target manager has that much pull, even in Plymouth, Minnesota, right?

The manager threatened to call the police. Mrs. Brown called them instead. The officers of the law did a cursory interview, and had the elderly lady strapped to a stretcher for ambulance transport to the local ER. The medical staff there did their evaluation, saw no reason to keep her, and released her the same day.

What?  The police behaving like the private arm of a business?  Could something like this really happen?

As previously discussed, the police have a duty to protect; They just protect businesses better then they protect people.  The last time we went around the horn with this problem, some of my knee-jerkier commenters sought to rationalize why the customer is never right.  Will you be able to do as well with our 79 year old Christine Brown, who’s crime was expecting her refund? 

Not only did Mrs. Brown have her receipt, she also had the bank’s record of the electronic transfer of funds to Target from her checking account. She was not unruly. She simply informed Mr. nasty she would stay at the store all day if necessary to get her cash refund. He told her she was trespassing. “I’m not trespassing. I’m a customer,” she said. “Give me my money and I’ll go.”

There you go, the John Dillinger of the geriatrics.  And before anybody starts mouse-milking the issue of whether she should have gotten a cash refund or gift card, or whether a paid-up customer exercising an undisputed right to return merchandise should be entitled to challenge the refusal of a merchant to refund her money, consider where her conduct got her:  To the loony bin?

The clarity of this situation tends to make the point as clearly as possible:  Mrs. Brown paid money for her merchandise and Target offered her a gift card in return.  It’s not the same thing.  Mrs. Brown disputed the refund by gift card, and was told by the almighty manager, “Sorry, lady, but that’s what your getting.”  Mrs. Brown stood her ground.  Enter cops.  Mrs. Brown gets strapped to a gurney and taken for a psych eval.  It just doesn’t get much worse.

So let’s try this again.  Cops favor businesses over people.  Cops confuse their duty by becoming embroiled in, and taking the side of business in, wholly civil disputes.  And Target is quite obviously a risky place to do business.  They never show anyone getting busted on their commercials.

I have to wonder what the officers’ mothers had to say about their brave efforts toward Mrs. Brown. 

When Apache County made the decision to interrogate an 8 year old boy in the murder of his father and a boarder in his home, without an adult guardian, without Miranda warnings and without honest, they left themselves in a hole from which they will never dig out.  At least they’ve decided not to try him as an adult, and videotaped the interrogation.

Gideon at A Public Defender has posted a portion of the video of the confession, with links to other parts.

It’s absolutely disgusting. There are two cops talking to this child, without the presence of a parent, guardian or lawyer.

They repeatedly ask him if he’s lying and whether he was home before he says he was. He steadfastly maintains his version of events and denies being involved.

In fairness, the officers are female and speak to the kid in a relatively soft voice.  No one is screaming at him or threatening to beat him with a club.  They do, however, suggest his answers and push him to be agreeable.  But then, this is a 3rd grader.  To any parent, the chance of an 8 year old saying whatever an adult, especially a police officer, wants to hear renders any sound out of his mouth suspect.

This doesn’t mean that he didn’t shoot his father.  It does mean that this “confession” is irreparably tainted.

Given the seriousness of the crime, the murder of two people, the handling of this interrogation is just mind-boggling.  Clearly, the police should not have interrogated this young boy without an adult, whether mother, guardian, lawyer, present in the room to assert his rights.  An 8 year old is not capable of doing so on his own, practically or legally.  Adults, by and large, can’t withstand the pressure and succumb to the shield.  A child has little chance.

Then there’s our old buddy Miranda, which presents an almost laughable irony in this case.  Of course, the 8 year old was not mirandized, but then what possible comprehension would he have had if the police had given him warnings?  The likelihood that a child would understand and appreciate the Miranda warnings are far too slim to make it meaningful as a warning, reducing it to a legal mantra.  Yet they didn’t even go that far.

Legally, it seems impossible that the videotaped confession could be used as evidence against this child.  Of course, that will be a test for a judge one day, and a good lawyer never underestimates the ability of a judge to render the wrong decision.

But on a practical level, can we put any faith in what this child told police?  Only the most hate-filled, myopic fool would adopt this statement without severe doubts.  Any half-competent authority figure can put any words they want into a child’s mouth.  If adults couldn’t easily manipulate children, no mother would ever make it through parenthood.

As Gid says:

Sometimes cops are too eager to “solve” a crime and do so at the expense of Constitutional rights. This also strikes me as a situation where they have blinders on and are now committed to their theory that the boy did it, while other legitimate avenues of investigation are going cold.

Because of this confession, the case was closed.  Why bother to look elsewhere when the killer is sitting right in front of you.  Closing cases is where it’s at.  Not finding killers, but closing cases.  The compulsion to “solve” can be overwhelming, and rarely do police want to unsolve a solved crime.  It’s inductive: Pick the perp and then nail it down.  To investigate elsewhere is to raise questions.  Questions don’t solve crimes.

Even if the cops believed the confession to be 100% accurate, however, the fact that they were dealing with an 8 year old makes a difference.  A “crime” begets a criminal.  If this boy shot his father, did he have criminal intent in his child’s mind?  Is criminal process the solution to the harm done to society?  Do we need to be protected from this 8 year old.  Does he understand any of this?

Everything is different when the police and prosecutors are dealing with a child of such tender years.   This is a test case, and the case tests us.

Norm, norm (small ‘n’ intended), Norm. Norm Pattis.  I miss hearing from Norm, which is why I so enjoy it when he writes his Connecticut Law Tribune column.  I keep asking Norm to let me know before he publishes something, but Norm is, well, Norm, and this time I had to find out from Doug Berman that Norm’s been up to his old tricks.  Ah, Norm.

Norm says “Mandatory Sentences Lead To Major Injustices.”  He figured this out completely on his own.  I swear I had no influence whatsoever.  This is, as far as I’m aware, the first time any lawyer in Connecticut (where Joe Lieberman was elected) has pursued such an extreme position.  Leave it to Norm to shake things up.

So what’s Norm’s problem this time?

Mandatory minimum sentences make a mockery of the separation of powers. Lawmakers enact such legislation believing that they speak in the name of people who are sick and tired of coddling criminals. Anger and passion demand action. Lines get drawn. But these lines become clubs wielded without discretion and review by members of the executive branch.

Clubs?  I love it.  Visions of baby seals being beaten and bloodied.  Don’t let those anti-criminal coddlers beat baby seals with clubs.

This isn’t justice. No one elects prosecutors. They never appear before elected officials for reappointment decisions. They lack accountability. Once a prosecutor has locked onto to a charge, no judge can dislodge him in the interest of justice. And a law without sentencing guidelines blindly adheres to the fiction that one size fits all. There are no safety valves for special cases; there are no downward departures for men and women deserving of consideration due to the sometimes special circumstances in their lives.

Everyone loves democracy and accountability, and those unelected prosecutors are anti-democratic.  But wait a sec.  What’s that about “sentencing guidelines?”  Did you really say sentencing guidelines?  Aren’t sentencing guidelines the epitome of “one size fits all” justice?  Haven’t lawyers in federal court spent decades fighting the injustice of sentencing guidelines?  Norm, why the heck did you bring up sentencing guidelines?  Oh Norm, no, don’t do it.  Don’t say those awful words.  What are you thinking!

I am not a fan of judicial discretion. But I trust a judge before whom I can appear and argue more than a lawmaker I will never meet. And I trust most judges more than many prosecutors, who, by dint of our sentencing law have been made de facto kings of the courthouse.

So if you’re not a fan of judicial sentencing, but even less of legislative sentencing, which still trumps prosecutorial king-iness, does that mean you are a fan of sentencing guidelines?  Oy gevalt.

Go do a few federal sentences and then let me know whether you really want to argue in favor of sentencing guidelines.  You may think differently.  But I still miss you, Norm.

Howard Bashman, the source of every significant bit of news (meaning he never includes SJ) online, provides this very funny, yet very true, article by District of Oregon Judge Michael W. Mosman, who sits by designation on the 9th Circuit Court of Appeals.  While it’s a “what not to do” for appellate judges, it’s a must read for any lawyer who argues appeals as well.  Judge Mosman offers 5 points for appellate judges to consider.

1. ARETHA FRANKLIN HAD A POINT
Respect is critical to the overall success of oral argument. But respect is a two way street.

Basically, this is a warning that judges to treat lawyers like idiots, extracting a promise not to bill their client for the time spent arguing, for example, or impugn their integrity because they suspect an improper purpose, because it demeans the integrity of the proceeding.  Notably, this is the flip side of lawyers rolling their eyes when the judge whose entire career was spent drafting contracts asks a question about a criminal law that any rookie PD know.  We can’t all be brilliant about everything, but we can behave like gentlemen in the process.

2. ISN’T YOUR CASE A LOSER?
It’s not unusual to see a judge who has decided that a particular case is a loser, and who is trying to get the lawyer to agree. This tends to be not only pointless but also aggravating to both sides. In almost every instance, the lawyer is duty bound not to stand in front of the judge and throw away the whole case.

Chances are good that someone on the panel isn’t going to be your cheerleader.  But that doesn’t mean that they should use their clout to try to beat you into total submission.  There is only one answer to this question: “No, your honor. Not at all.”  Then spent the rest of your time arguing to the other judges, because you aren’t going to get that judge’s vote no matter what you say.

3. THE BUTCH CASSIDY PROBLEM
Cassidy’s relentless pursuers prompted him, at several points in the movie, to ask: “Who are those guys?” But there is a law of diminishing returns for this kind of relentlessness at oral argument. Judges often have a “right” answer they are seeking to a particular question. Being lawyers at heart, they pay attention to minor differences between the answer they are given and the answer they want. They want to nail it down tight.

Judges are often frustrated lawyers, who can’t stand the fact that you’re the one doing the lawyering when they want to do it too.  So they cross you at oral argument to get you to say what they want you to say.  The problem, of course, is that they’re the judge, and you can’t scream out, “enough already.”  Mind you, other judges on the panel could do that, but collegiality usually prevents intervention. 

When a judge persists beyond the second effort at getting you to give the answer they want, you need to be capable of dealing with it, since it’s your time to argue that’s being eaten up for their ego. 

4. HOW YOUR QUESTION IS LIKE A PIECE OF WEDDING CAKE
Judges often think out loud in framing a question. The result is a long, multi-faceted question that makes sense to the judges because they are supplementing what they are saying with what they are thinking. But for the lawyers these questions can be almost impossible to answer.

This is one of the most frustrating experiences during argument, since you appreciate that the judge has a real concern, and is seeking your help in working a problem through in his mind.  You want to help.  You want to answer the question.  You just can’t figure out what the heck he’s talking about, and don’t want to insult a potentially friendly judge by challenging him to ask it again, this time in English.

This is the moment when you cloak yourself in disparagement, and apologize profusely for your sorry inability to follow his incisive question, and beg the judge’s indulgence to ask it in a more straightforward way.  The judge will get the message, and appreciate that you took the heat.

5. THAT VACANT LOOK MEANS SOMETHING DUMB HAS HAPPENED–BUT IT’S NOT WHAT YOU THINK
Occasionally, you may get a vacant look at the conclusion of your question, followed by a lawyer’s stumbling attempts to craft an answer. It’s possible that your arrow has flown right to the heart of the matter, and the lawyer is dumbfounded and hardly able to speak. But a dollop of humility will also create the possibility of another answer: your question doesn’t make any sense.

This is a lawyer’s opportunity to shine, if you really know your stuff.  Too often, lawyers assume that the judges know the law as well as they do, and that the judges know something they don’t know.  This prevents the lawyer from realizing that the judge has just asked an incredibly dumb question, causing the lawyer to feel as if he’s just been blind-sided.  

But if you’ve done your homework and are fully prepared, then you will recognize the dumb question for what it is, and take advantage of the opportunity.  The problem, of course, is that you need to be sure that the judge is the one who asked the dumb question, and not that you just didn’t get it.  

There is much more within Judge Mosman’s post, and it’s something that every appellate lawyer should read. 

Someone out there (my bet is on Kevin O’Keefe) can tell me the actual percentage of lawyers who are actively engaged in the ever-increasing world of online activity.  If a new lawyer was to stumble into the middle of the blawgosphere, or perhaps the tweetosphere, he would be left with the impression that the primary concern of American law is marketing.  It appears to be an obsession.

Is this a problem?

In the blawgosphere, my bet is that I’m in the distinct minority on this one since almost every other lawyer, PDs excepted, is client-hunting.  They are not shy about it.  They want to network and market.  They want to establish their brand.  They want to be on the cutting edge of . . . the cutting edge.

Please don’t misunderstand.  I am a capitalist through and through.  I work for a fee.  I find no shame in being paid for my services, even as others in my niche tend to prefer what I was informed yesterday was a “larger world view” encompassing the goodness of humankind.  Pollyanna I’m not.

But this constant, obsessive, flagrant effort at marketing has me in a twist.  Or to be more precise, being a lawyer with a blog and there swept into the assumption that my only purpose here is to self-promote makes me very annoyed.  I have nothing against you marketing guys, but I do not want to be tarred along with you.

As Kevin has informed me in no uncertain terms, maintaining Simple Justice is, whether I like it or not, marketing.  I understand his point, and reluctantly agree.  But it’s no more intentional marketing than beating a case at trial, with the word of my victory spreading amongst my peers and potential clients.  I didn’t win the case to market myself, but it’s an unintended consequences.  I’m not against it, but I didn’t ask for it either.

What I’m seeing is that the “how to” of marketing, the advice on self-promotion and, worst of all, the language that pervades blawgospheric discourse has become increasingly directed to open, notorious marketing.  Many of the most popular blawgs around are solely directed toward marketing.  Many of the best writers in the blawgosphere post only about marketing.   How to snag the last client on earth will be the final post in the blawgosphere.

Is this all we lawyers are?  Is this all we want to be?

I used to think the use of business lingo amongst lawyers was funny.  Business people, perhaps feeling left out because lawyers tossed latin around with abandon, came up with cute phrases to conduct their affairs to make the insiders seem more “with it.”  The early word, networking, has become so common and old school as to make its user seem out of touch.  We used to use the phrase “talk to other people” before networking.  How antiquated does that sound?

I’ve seen the phrase “thought sharing” a lot lately.  I can’t wait for the CIA to get it’s hands on this one. 

Senator, we weren’t torturing the prisoners.  We were just thought sharing.

I don’t “thought share,” any more than I network.  I do talk to other people from time to time, like normal people do.  Sometimes I ask a question of them and sometimes they ask a question of me.  We help each other out. 

One of my gravest fears for the blawgosphere is that it will turn into one giant infomercial, all about self-promotion and marketing, both to other lawyers (Hey, got a New York case?  Send it to me!) and clients (I’m the greatest lawyer since sliced bread. Hire me! Hire me!).  Does anybody wonder why there is no cable channel solely dedicated to airing commercials 24/7?

Yes, I realize that there’s a reason why the legal marketing blogs are so popular, far more so than a little criminal law blog like Simple Justice.  For every person who visits here and reads a post, they get 100.  I’m a midget and they’re giants.  Their visitors are lawyers, hungry for more business, a better future and bread on the table. 

Someone, I expect, will read this and comment (or at least mutter to himself) so if you don’t like it, don’t do it.  If others want to do it, what business is it of yours?  There’s always one person who doesn’t get it, and doesn’t get that he doesn’t get it. 

The problem is that this obsession with marketing makes the legal profession, if you’re not laughing when I use the word profession, look pathetic.  I am part of this profession, and I don’t want to look pathetic because of other people’s choices.  I don’t want the public, my potential clients, thinking that we are no better than used car salesman (who are probably now held in higher esteem than lawyers), trying to make a sale any way we can.  I don’t want my writing considered just another attempt at self-promotion under the guise of offering substantive ideas.

The newer generation of lawyers never knew a time when lawyer advertising was considered unethical and unprofessional.  It was undignified.  The very concept of lawyers being dignified is foreign to their experience.  Imagine a world where lawyers placed integrity and ethics above the next fee, or bonus, or promotion, and as a result of their integrity, received as much as they earned (think John Houseman saying the word “earned”).

So I’m begging those of you who are busily planning your next marketing assault, scribbling down the latest phrases so that you can thought-share them with your network, to just cool it.  How about we lawyers take a week and stop hyping ourselves like the latest submarine sandwich and spend our time “selling” ourselves by showing rather than telling the quality of our efforts, the integrity of our services and the dignity of our profession.

Wouldn’t it be nice if somebody out there thought lawyers were dignified again?  Noodle on it.