Monthly Archives: August 2009

Does The Word “Slackoisie” Offend You? Good

Stephanie West-Allen has posted a commentary by Susan Cartier Liebel, shopkeeper at Solo Practice University, that followed yet another self-justifying article by a generational consultant at Forbes, about how Susan doesn’t care for the word “Slackoisie”. The term, “coined by Dan Hull and April Boyer,” and one of my personal favs, offends Susan.

There’s a ridiculous term floating around ‘Slackoisie’ to describe Gen Y. It offended me because it implies wanting something ‘different’ then the same work model meant you were in your parent’s basement, eating potato chips in your pajamas playing on the internet waiting for your million dollar idea without working for it. I’m a tail-end baby boomer and I totally relate to this article. I want to fall down in a stupor when I hear that those who want to change the model are slackers (ergo the term ‘slackoisie’). If someone can build a better mouse trap, bring it on!

What these ‘elders’ are really offended by is something noted in this article, a lack of respect and skepticism for those over 30, that somehow those under 30 know more, are better qualified to do anything and resent those over 30 for the world we live in which isn’t to their current liking. But that’s a very different reason for ‘over 30’s’ disdain of Gen Y. It has nothing to do with their work ethic. It has to do with Gen Y’s lack of ‘respect’ and maybe even gratitude for those who are older.

And maybe this is simply nothing knew…except the terminology.

Let’s take this from the top. The term “Slackoisie” is derogatory. By definition, it’s supposed to offend those it describes, or else it wouldn’t be very derogatory, now would it? Thus, if it offends you, then it’s doing its job. This doesn’t make it ridiculous, but a term that serves its purpose.

That said, it’s not left to those who are offended by a word to decide on its definition. I realize that Susan is playing to an audience that is unfamiliar with logic, or logical fallacies, and wouldn’t be inclined to pick up her enjoyment of the strawman fallacy. That’s the nature of the Slackoisie. The symmetry of using a fallacious argument to rally those who couldn’t comprehend why it’s fallacious is nothing to sneeze at. It’s a great tool, provided that no one points out that you can’t do that. But there was little chance of that happening when it was used to bolster an article that no intelligent person would read.

So why was Susan so offended?

It offended me because it implies wanting something ‘different’ then the same work model meant you were in your parent’s basement, eating potato chips in your pajamas playing on the internet waiting for your million dollar idea without working for it.

Well, it doesn’t “imply” any such thing. That’s very clearly what it refers to, though it’s about Doritos and not potato chips. Please get your snack foods right, Sue. You don’t get to redefine it because you want to be the heroine of the Slackoisie. But what you’re trying to convey, though somewhat obscured by some mixed tenses and dubious word choices, is that you’re offended by its denigration of work/life balance, the touchstone of the Slackoisie.

Guess what? Tough nuggies. Now I realize as much as the next guy that work/life balance is a sacred cow of the Slackoisie, and these are your bread and butter at your version of pay-per-view, Solo Practice University. You have to keep up appearances of agreeing with these kids who are willing to pay to learn the magic bullet of internet marketing so that they don’t have to put in the effort of gaining competence and wasting all that time providing excellent client service. It’s so much easier to just market themselves online to make a quick buck and achieve success as solos. We’ve crossed this bridge many times already.

But don’t blame me for refusing to keep this dirty little secret quiet. My perspective is the practice of law, not the selling of SPU. I hate to remind you of this, Susan, but you made your choice when you decided to put marketing ahead of competence. I don’t blame you, since you can count on the marketers to do everything in their power to help you achieve financial success at SPU, as it also serves their pecuniary interests as well. A guy like me would be terribly disruptive, saying mean things whenever the integrity of the profession was at risk. You can’t have integrity when you’re trying to run a business.

So if you’re of the view that the millennials don’t fit the definition of the Slackoisie, then there’s no reason the word should bother you at all. And yet it does. You say, “if someone can build a better mousetrap, then bring it on.” Better for whom, Susan? That’s Stephanie’s point. It’s all about what’s good for the Slackoisie. There’s no mention of what’s better for the clients.

Until those who want to lead the great unwashed into successful solo practice recognize that this is a profession, the purpose of which is to serve our clientèle, the word Slackoisie will continue to appear. And it will continue to sting and offend. As it should.

Bad Result Breeds Ineffective Assistance

When you hear numbers like these, you have wonder what went so horribly wrong. Carlos Carrion rejected a plea offer that would have netted him a 10 year to life deal for a Bronx shooting. He fought and lost, ending up with a sentence of 125 years. Incidentally, the judge who imposed this sentence was my old buddy, Leslie Crocker Snyder, who was forced to learn how to spell the word compassion after she left the bench to run for District Attorney.

From this New York Law Journal article (which is unfortunately only available to those willing to pay for the privilege), Carrion was convicted in 1991 after a high speed chase and shootout, where he was holding 11 pounds of cocaine. He got the worst of the battle and was left a paraplegic. In 2004, Carrion sought a writ of habeas corpus which, after going up and down, was granted by SDNY Judge Shira Scheindlin, rejecting the magistrate’s recommendation for denial.

“Carrion testified that [Roy] Kulcsar never advised him as to the sentencing ranges for the charges he faced,” Judge Scheindlin wrote in her 51-page opinion. “Although this testimony is self-serving, I find it credible, especially given his demeanor in testifying and Carrion’s other corroborating testimony that he lacked the sophistication to invent.”

On the other hand, she said, Mr. Kulcsar “testified he had no present recollection if he ever discussed with Carrion the mandatory minimum and maximum sentences for every count in the indictment.”

Roy Kulcsar has been around the block a few times, and I have no doubt spelled out the trouble Carrion was looking at, but similarly testified honestly that he couldn’t remember what he had done in this particular case about a decade earlier.

I have long admired Judge Scheindlin’s deep concern for the rights of defendants. She’s a bold judge, and has always demonstrated a heartfelt understanding that real people suffer in the system when things go awry by doing something about it. And clearly, a leap from 10 years to 125 emits a horrible stench. But was this Roy’s fault?

“Given that the drug charge carried a minimum of 15 years-to-life, the People’s plea offer of 10 years-to-life was extremely generous,” she said. “There was no reason why Carrion should not have taken the plea offer and certainly no reason why Carrion should not have been strongly advised of the advantages of doing so.”

Judge Scheindlin found that Mr. Kulcsar’s assistance “fell below an objective standard of reasonableness” because “he failed to advise Carrion of the sentencing exposure he faced if he were convicted at trial” and “he failed to give Carrion advice regarding the advisability of accepting the plea offer that was sufficiently robust under the circumstances.”

This is where things get a bit spotty. It’s not that Roy didn’t advise Carrion of his sentencing exposure, certainly something required under an objective standard of reasonableness, but that his advice to take the plea offer was not sufficiently “robust”. Or, to put this in clear terms, Judge Scheindlin ruled that Roy should have rammed the offer down Carrion’s throat.

Roy’s position is clear:

“I don’t believe a lawyer’s role is to tell a defendant what to do,” Mr. Kulcsar said. “You see applications all the time where a defendant pleads guilty and he says, ‘Well, the lawyer told me to plead guilty.'”

It’s all too easy to Monday-morning quarterback the decision to accept or reject a plea offer. Should it be the law that the attorney decide whether the defendant should take the plea, and then manipulate, cajole, force the plea upon the defendant. I think not. In fact, I think that forcing a defendant to cop a plea is one of the most unethical things an attorney can do. Explain it fully, honestly and clearly? Absolutely. Advise the defendant as to the relative risk of a plea versus trial? Absolutely. Ram it down his throat? No. Never. The ultimate choice must always belong to the client, after he has been fully and properly advised.

It strikes me that Judge Scheindlin’s decision was designed to provide Carlos Carrion with relief that he deserved, and that Roy was just the conduit to justify the outcome. My bet is Roy’s shoulders are big enough to carry the weight, and his reputation can well withstand the smack. But it didn’t have to fall on Roy for justice to prevail.

The better alternative would have been to lay blame for the outrageous distinction between the 10 year plea offer and the sentence of 125 years on former Judge Snyder, who exacted a spectacular penalty for Carrion’s having exercised his right to trial. Famous for her excessive sentences and inappropriate vituperative rants, the 125 year sentence provided a far better justification for the grant of habeas relief than Roy’s advice.

But then, it may be more palatable to lay blame on the defense lawyer than a judge. At least Carlos Carrion received relief, and I bet that Roy Kulcsar would rather he be blamed for insufficient advice than see his former client suffer. That’s the kind of lawyer Roy is.

Endorsement: Cy Vance, Jr. for Manhattan District Attorney

Consideration of who should sit in a chair that’s held but one backside for the entirety of my legal career, plus, comes from both the perspective of the citizen as well as criminal defense lawyer. The New York County District Attorney’s office is an impressive animal, both from the excellent quality of its staff as well as its internal integrity. I’ve fought with these guys for over 25 years, and while it hasn’t always been perfect, it’s been by far the best I’ve dealt with.

Filling Robert Morgenthau’s shoes is not going to be easy. He’s been a towering figure, as was his predecessor, Frank Hogan. There are many who wear the “tough on crime” mantle, and would use the office to pander to the fears of New Yorkers, but few who have the fortitude to both do the job demanded of the person who can almost see Wall Street from the very large office, but do it with the level of integrity and self-restraint shown by Morgenthau, as well as improve its fairness based upon what we’ve come to know about a flawed system and the handling of such awesome power.

Cyrus Vance, Jr., is the right person for the job.

All New Yorkers look to the DA to fulfill his duty to protect them from crime. Even criminal defense lawyers seek an effective prosecutor, as much as some might not appreciate that we walk the street too, and have no desire to be anyone’s victim. But everyone wants to be a crime-fighter, so that claim offers little to the mix that we couldn’t find elsewhere.

It’s Cy’s broader vision, his understanding that insensitivity to the cultural differences amongst New Yorkers, blind faith and support for police that leads to abuse, misconduct and deception, that undermines a willing adherence to the law and a city dedicated to fairness for all.

Some years ago, it was the strength and integrity of Robert Morgenthau’s Official Corruption Bureau Chief that led me to bring information about abuse and corruption within the 30th Precinct. Recognizing the depth of the problem, and accepting the premise that only from defendants would he learn what the cops were really doing on the street, this generated the investigation that led to the Dirty 30 scandal. It’s this concern for integrity that can’t be lost in the zeal to be “tough on crime.” Morgenthau had it. Cy Vance has it as well.

What makes me say this? Check out Cy’s position on fair convictions. He’s not merely aware of the wealth of issue surrounding bad IDs, junk science and false confessions, but he’s determined to put an end to the conviction of the innocent, “just because they can.” Cy realizes that wrongful convictions are a societal disaster, and has shown the guts to acknowledge that they happen and that it’s his job to do something about it.

If this wasn’t enough, just yesterday Cy did something that blew my socks off. He publicly announced his endorsement by Barry Scheck and Peter Neufeld of the Innocence Project. My enormous admiration for Barry’s and Peter’s work aside, the fact that Cy is proud of his support beyond the “usual suspects” speaks volumes.

I could offer reasons why I have issues with Cy’s opponents for the office, but there’s no need to go negative about them. My endorsement of Cy Vance isn’t based on his being merely better than other, less worthy candidates. I endorse Cy Vance because he’s the right person for District Attorney, no matter who else is running. Cyrus Vance, Jr. is the right person to fill Robert Morgenthau’s shoes.

But Technology Doesn’t Love You Back

Over at Law21, Jordan Furlong has been the prophet of technological change, dedicated to the proposition that tech changes everything. And indeed, he’s proven himself right, but not in the way he hoped. After noting that he’s been good about saving his posts to Word files, just in case, he explains:

The reason why I take all these steps was amply illustrated yesterday when URL-shortening service Tr.im shut down with no advance warning. All of the stats it was tracking have disappeared, and all the links it created could be gone by Jan. 1, 2010. If you’ve been following me on Twitter, this could be problematic, since I’ve been using tr.im links for a few months now. (I switched from tinyurl.com and eventually from bit.ly simply because tr.im bought me one extra character to play with,vital in Twitter’s 140-character universe.) It’s a bigger problem for me, though, because I’ve been using Twitter as a micro-publishing tool, so I’ll now need to go back, click on all those tr.im links I posted, and resave them using some other method. That’s assuming, of course, Twitter keeps my old posts — Robert Scoble, for one, isn’t sure they even exist anymore.

Jordan’s post is a warning to others. I am amongst those others. We have a vast assortment of tech tools available to us, with a equally vast array of cheerleaders imploring us to move into the 21st Century, hop on the bandwagon, get with it. What few talk about is that some of these tools won’t be around tomorrow. Or the next day.

And as some tech falls by the wayside, so too will the content and connections we thought were safe.

I learned this lesson the hard way when my VoiP provider, Sunrocket, disappeared off the face of the earth one day, holding my telephone number captive. No warning. No notice. Just here today, gone tomorrow. Tough luck, baby.

Chances are pretty good that anyone reading this post has become dependent, to some greater or lessor extent, on the miracle of modern technology. Some love it so very much that they lead cheers, and maybe even pray to it in privacy. But the assumption that because it exists today, it will continue tomorrow, is foolishness.

New technologies come and go. I’ve got my old Iomega zip drive, on which I backed up a ton of data, which won’t work with the USB port on my rather pedestrian computer. If I need to access the data, I’ll need a new zip drive. But then, who needs a zip drive when my flash drive does it all, and better.

Then again, every post on Simple Justice is stored on a server located in the bowels of somebody’s business. I couldn’t tell you where, and it wouldn’t really matter if I could. I depend upon the fact that they will continue to be there, but if they pull the plug tomorrow because cash flow has dried up, everything would be gone. Unlike Jordan, I haven’t saved my posts to Word files. Or any other files. I just write, and let the magic of technology do the rest.

As some of Jordan’s commenters note, I consider it ephemeral, and it’s not like I would recreate it if it disappeared. But then, I would certainly prefer it remain in existence rather than disappear. And if it did disappear tomorrow, I might have a different opinion about its existence, since you don’t know what you’ve got till it’s gone.

To anyone who has been around long enough to remember when vinyl was replaced by 8 tracks, you know better than to trust in the future of technology. Some of it never catches on, and some of it now seems so antiquated as to be laughable. What were we thinking?

Still, this hasn’t stopped today’s techno-savants from believing with all their heart and soul that the latest, greatest miracle of science is the final word. And they are betting their lives on it. Or at least their life’s work.

Having never had the mind for predicting the next great thing in tech, I demur to more savvy individuals. I’ve no doubt that Jordan is absolutely right that technology has, and will continue to, change the way we practice law. You can’t go back to the farm after you’ve used twitter (to micro-blog, I’m told).

But no matter how much you love technology, never forget that it doesn’t love you back. Thanks for the reminder, Jordan.

The Alfalfa Field Doctrine

Turley, who is obviously far more attuned to news arising out of Montana than I am, posts about the Castle Doctrine, sans Castle. After noting how well expanded Castle Doctrine laws have been received, morphing into Make My Day laws, and then Make My Day Better laws, Montana has found itself staring at the natural offshoot :

Daniel Lira, 32, was working inside Wal-Mart’s loading dock area when he got into an argument with co-worker Craig Schmidt, 49. He ended up hitting Schmidt in the face. Schmidt responded by pulling out a .25-caliber semiautomatic Beretta handgun and shooting Lira in the head from as little as 10 feet away. Yellowstone County Attorney Dennis Paxinos, however, released Schmidt in light of Montana’s “castle doctrine law” which allows citizens to use potentially lethal force in self-defense — despite the escalation in the level of force by Schmidt from a fist fight to a shooting.

The bullet did not kill Lira but grazed his head.

In Montana, you see, one need only fear bodily injury to whip out the gun. Fortunately for Lira, Schmidt was a lousy shot.

The means by which self-defense in the homes slips down the slope to shoot anyone who might hurt you in church isn’t all that hard to follow.

As State Representative Krayton Kerns (R-Laurel) explained in one news report, “The ‘castle doctrine’ only applied to an occupied structure, one tiny little place, (but) what if you’re not in an occupied structure? What if you’re out in an alfalfa field? What if you’re walking down the street with your wife, your kids and your dog? It’s too restrictive to have it just be the ‘castle doctrine’. You are the castle. Wherever you go, your right to self defense goes with you.”

Makes perfect sense, doesn’t it? After all, if it’s about defending oneself, should it matter where the threat occurs? Are we less interested in self-defense in the alfalfa field than the bedroom? Does the attack hurt any less?

The problem, of course, is twofold. First, who is attacking whom is often a subjective matter, if we assume good faith on the part of the shooter to begin with. Rarely does anyone say, “well, yeah, I attacked him and he defended himself by punching me back, so I pulled out my Beretta and killed him.” On the other hand, someone inclined toward shooting someone who really pisses them off when there’s no one else around could rather easily say that the victim attacked and he merely defended himself. Dishonest, perhaps, but certainly not inconceivable.

I can already hear the choir in the background, in a slow, Texas drawl, chanting, “better to be judged by 12 than carried by 6.” But fellas, you don’t know which end of the Beretta you’re going to end up on. If you’re in your own home, then at least we have a way to measure who gets to shoot whom. We’re all equal in the alfalfa field.

Lawyers test arguments by taking them to their logical extreme and seeing whether the theory underlying them holds up or produces absurd results. Unfortunately, the logical extreme often involves a Wal-Mart, which can’t be good for business.

The controversy over whether killing a person who enters (or comes close to) your home (or an unoccupied neighbors home) has yet to be resolved. The straight-out Castle Doctrine hasn’t proven to be as simple to execute in a rational manner, consistent with the notion that we just don’t kill people for lack of a decent show on TV, as hoped. Nonetheless, the machismo of cheap life and self-righteousness has greased the slope to the point of landing on the loading dock of Wal-Mart.

The really crazy part of this is that there will be many who will argue that this return to the wild west is what America is all about. Of course, that’s as long as the other guy doesn’t draw first.

Another Tragedy Brings Another Law

When Diane Schuler’s car, carrying 5 children, crashed going the wrong way on the Taconic Parkway, it was a tragedy. Four dead in her minivan, and another 3 in Guy Bastardi’s trailblazer. But when it was revealed that she had a blood alcohol level of .19, not to mention pot in her system, it was an opportunity not to be missed.

And like clockwork, the politicians have come up with a new law. First, Republican State Senator Charles Fuschillo. Then Democratic Governor David Paterson. Naturally, Nassau District Attorney Kathleen Rice, the drunk driving avenger who has used murder charges as the hammer to pound her name into the minds of voters, locked arms with the Fuschillo proposal.

The gist of the new proposal is to enhance punishment for those who drive drunk with a child passenger.

Cases of aggravated vehicular homicide or aggravated vehicular assault in which a child passenger is killed or seriously injured would be treated as violent felonies, with penalties ranging from 3½ to 25 years in prison.

In addition to tightening penalties, the proposed legislation would treat those caught on a first drunken-driving offense with a child passenger as “serious offenders” and require that they be subject to a mandatory interlock provision for one year. The provision requires the installation of a device that makes the car inoperable unless the driver demonstrates, via a breathalyzer test, that he or she is not under the influence of alcohol. Right now, the installation of interlock devices is left to judges’ discretion.

It’s a well worn equation: Death of a child + drunk driving = new law. It’s always good for a political play, showing how our elected officials are “doing something” about the latest problem on our radar. And, as usual, few consider its illogic, necessity or unintended consequences.

There are sound arguments for using child passengers as an enhancement factor, foremost of which is that the drunk driver knows as he cranks the ignition that he’s got children in the car, whereas having a child in the car to be hit or crossing the road is an unknown variable. To impose an additional duty of care because of this makes sense. Further, children aren’t in a position to take the keys away from a drunk adult, or to call themselves a cab rather than drive away with a drunken adult. And finally, children may not have the capacity to recognize that Mom or Dad or Uncle Joey is smashed, or sufficiently “happy” to make them a danger on the road.

But on the flip side, the death of an innocent victim is still death, tragic and undeserved. The family of Guy Bastardi doesn’t take comfort in the fact that he was an adult when he died. His children don’t feel better about it. Nor does 15 year old Joseph Marino, mowed down on his bicycle yesterday by Caroline Goss, with her 6 year old in the Jeep Cherokee, as he clings to life.

There is a difference between the driver with .08 BAC and .19 BAC. But there is little difference between the driver on the cellphone whose neglect kills someone. There is a difference, of course, for texting while driving, which is far more dangerous than drunk driving. Twenty-three times more dangerous.

The difference here is that the death of a child produces a visceral reaction of horror, which blinds us to reason, and that there are few supporters of drunk drivers, to speak out for a rational approach. On the other hand, conduct perceived as less morally culpable but as or more dangerous, is a much harder target. As the drunk driving laws become increasingly harsh, mandatory and convoluted by new laws crafted in knee-jerk reaction to specific incidents, while the law simultaneously ignores impending tragedy by more socially acceptable weapons, we end up with a satisfying yet irrational state of affairs.

The law already criminalized the endangerment of children, whether by driving drunk or any other way one can imagine. It’s one the books, and been on the books, for a long time. Adding an enhancement from another angle to replicate existing law changes nothing and exposes people to inconsistent, and therefore arbitrary, punishment.

On the other hand, the wrong that drunk driving laws seek to prohibit isn’t altered by the tragic outcome, but the initial turn of the key in the ignition. Whether one makes it home safely or kills a busload of children bears no connection to the causal conduct. Culpability should be driven by mens rea rather than fortuitous outcomes.

Similarly, if the busload of children are killed by the driver texting rather than drunk, are the children less dead? Will their parents be less heartbroken? But texting doesn’t have the moral culpability that we impose on a drunk driver.

And then there is the issue of blood alcohol content as the measure of the crime. Criminal laws are supposed to be crafted in such a way as to give ordinary citizens notice of the prohibited conduct, but no person can determine his BAC, a scientific measure. Rather, it’s a standard designed to facilitate prosecution, providing police and prosecutors with a brightline measure of guilt rather than a citizen of a brightline measure of prohibited conduct.

And as the push to stop drunk driving achieved greater momentum, the BAC limit dropped, now at .08. The number is arbitrary, and fails to take into account a variety of critical factors that distinguish between the drunk driver and someone in full possession of their faculties. Compare the female, 105 lb. occasional drinker at .07 with the male, 237 lb. hard drinker at .10, the former being a danger and the latter being as good as he is when sober.

While we use the word “drunk”, a pejorative term designed to impugn the driver, the law encompasses the absolutely ordinary diner who has enjoyed a bottle of 1961 Château Lafitte Rothschild with dinner as well, and then drives home from a very fine restaurant. The line between the drunk and the fine diner is too unclear to offer guidance between the gourmet wine enthusiast and whiskey swilling animal. We don’t know until we read the headlines the next morning who is who.

I’m neither a fan nor apologist for the drunk driver. I don’t care much for the cellphone talker and really can’t stand the texter. It pains me when a child dies in a tragic accident, and when an adult dies too. Yet I’m a huge fan of rational, comprehensive, well-conceived, properly designed laws that are narrowly tailored to address the conduct at issue and meld appropriately with existing law.

Every time a tragedy strikes these days, the law suffers along with the victims. We’ve got to stop letting the headlines drive legislation rather than reason. It’s not that the problems aren’t real, but that the legal solutions aren’t sound.

AALS Creates Permanent Committee on Hemlines

Some years, hemlines go up. Some years, hemlines go down. If they didn’t go up some years and down others, there would be no reason for hemlines scholars to exist. And so it goes for the American Association of Law Schools, which has decided to grant permanent status to a Section for the flavor of the month, balance.

The AALS granted permanent status to its Section on Balance in Legal Education! The Section aims to maximize the health, well-being and career satisfaction of law students and lawyers. I applaud the AALS for recognizing that this area needs attention and creating a permanent Section on Balance.

Balanced law students develop positive habits in law school that carry with them to their law practices. No matter the area of law, having good coping skills for stress, an established personal moral code, and a sense of purpose are essential for not only career satisfaction but embodying the high level of professionalism expected at the bar.

Do unbalanced law students wobble and fall down?

It’s ironic that at a time when practitioners (and law students) argue that law school fails to put our young lawyer capable of performing the duties expected of them, a position that lawprofs contend is wrong and ignorant, since they certainly are far better at self-assessment than are the people hiring and working with their student output, the AALS chooses to focus on balance.

Like so many contentions that are politically popular but nonsensical, the words strung together not only fail to make a cognizable sentence, but appear to be facially contradictory. How does career satisfaction lead to a high level of professionalism? I don’t know either. Both are nice phrases, but there’s no logical nexus between them.

But the part that really amuses is the part where balance law students will establish a personal moral code. Would that be the moral code that tells them it’s perfectly fine to wear ripped jeans and flip flops in court? After all, it’s personal and they’re allowed to decide for themselves what morality should be. That’s balance?

This is another example of using peppy phraseology to conceal a substantive swamp. Balance means the antithesis of professional responsibility; it’s the right to only have to be professional when it’s convenient, so that one can enjoy whatever life has to offer whenever one wants to, professional responsibility be damned.

And by the way, it we leave it up to each individual to develop their own personal moral code, remember that there are other Jeffrey Dahmers out there. Get the point? This is one incredibly dumb idea. I only wish it was surprising.

Next year, the AALS will be considering a permanent section on Ice Cream Parties. It very controversial, with the Anti-Balloon group raising quite a ruckus.

H/T Stephanie West-Allen at Idealawg.

It All Comes Down To The Taser

When Ryan Smith’s tasing into compliance with a court-ordered subpoena for his DNA was approved by Niagara County Judge Sara Sheldon Sperrazza, the blogosphere was shocked. Mind you, this news was broken here (via our hinterlands correspondent, Kathleen Casey, who took the trouble to get her hands on the decision) and then repeated across the blogosphere by worthless miscreants who wrote about it as if they had discovered it all by themselves, without so much as a hat tip.

But unlike those bottom feeders, our hinterlands correspondent remains on top of the Smith case, bringing the next piece of this ugly puzzle from the Smith trial, via the Buffalo News :

But Delorise Garner couldn’t identify any of the attackers, including Ryan S. Smith, 21, who is on trial in the home invasion, a subsequent shooting and a separate gas station robbery.

That failure to identify will be typical of this trial, co-defense counsel David C. Douglas said in his opening statement.

“You won’t hear any human being identify Ryan Smith as a person who was at any of the crime scenes,” Douglas told the jury of eight women and four men.

But DNA will place Smith at the scenes, Assistant District Attorney Susan B. Bjornholm said.

Not that eyewitness identifications have any great credibility, but they certainly serve to convey the victim’s trauma. On the other hand, DNA is scientific, and everybody knows that if science says so, then it has to be.

The upshot, however, is that the Smith trial without the DNA seized by taser would be . . . over. Without a means of identifying the perpetrator of a crime, there’s no case. When the issue arose as to the use of a taser to obtain Smith’s submission to the police, or his willing consent as the police might frame it, there was no indication that the DNA wasn’t just icing on the cake, with the cake being the testimony of eyewitnesses that Ryan Smith was the perp.

We now know differently. We now know that without the DNA, which the prosecution had obtained earlier but lost, the case was done. It’s now the critical link between a potential conviction and a trial order of dismissal. This obviously ups the stakes for both sides on trial, and for those observing who were appalled at the use of a taser to put a smile on Smith’s face. Do you feel strong enough about the impropriety of using a taser to obtain compliance with a subpoena to watch Ryan Smith walk?

As is so often the case, law is made like sausage. Ryan Smith is not a sympathetic fellow. He’s not a hero. While I don’t know him, my guess is that he’s not the sort of fellow you want dating your daughter. But this is where bad decisions happen, when dumb cops, over-zealous prosecutors, outcome-oriented judges, all meet.

It would have been far easier for Judge Sperrazza if the prosecution had a victim who could ID Smith as the assailant, so that she could suppress the DNA, chastise the cops for being boneheads, and issue a decision that wouldn’t have subjected her to blawgospheric ridicule. But she’s looking down the throat of a potential walk of the accused if she tosses the DNA, and Judge Sperrazza wasn’t about to take the risk. The risk of Ryan Smith walking. The risk of siding with the defense. If she’s going to get beaten up, better that it be for backing the good guys of law and order than the vicious, nasty Ryan Smith.

While the trial isn’t over yet, and the defense will challenge the DNA as flawed, experience teaches that overcoming scientific evidence like this is extremely difficult. Jurors don’t understand it and accept it at face value. Truth is, same with judges and lawyers. Even experts have problems trying to make anyone else understand its complexities and why things aren’t always as simple as people would like them to be.

But it would certainly make Judge Sperrazza’s life easier if the defense scores big on beating up the DNA evidence and gets an acquittal. Then, there will be no appeal of the DNA taser ruling, and she can forget that it ever happened. Until the next time, when some other judge cites to her decision approving the use of a taser as the friendly persuader.

Another Lesson From Charlie Nesson

Harvard lawprof Charles Nesson was thought a visionary by all. Well, almost all, given that Ken at Popehat has yet to forgive him for throwing chalk at him in evidence class. But Ken aside, Nesson saw the future of the internet well before most.

Ten years ago, Professor Lessig dedicated his first book to Professor Nesson: “For Charlie Nesson, whose every idea seems crazy — for about a year.”

That’s really something. If the rest of us have one novel idea in our lifetime, we’re way ahead of the crowd. Charlie Nesson thought differently than the rest of us. He saw things that we couldn’t, wouldn’t, see.

This is why his invitation to add his brilliance to the defense of Joel Tenenbaum against the hated RIAA, the storm troopers of the music industry, was greeted with such excitement. Aside from the outrageously draconian penalties exacted by the RIAA with Congress’ blessing, this was where old school copyright, the ability of a creator to earn money from his work, met new school freedom to enjoy the intellectual property of others without compensation.

It was a disaster. From the New York Times post-mortem :

The problems for the case, however, started well before the first day of trial; Professor Nesson’s court filings and tactics were decidedly informal and offbeat. As part of his almost obsessive desire for transparency and documentation, he posted a recorded telephone conference call with the judge and industry lawyers on his blog, and even posted e-mail messages from friends discussing case strategy.

The crucial blow came on the stand, when Professor Nesson encouraged Mr. Tenenbaum to admit freely that he had downloaded and shared songs, after having denied it in depositions, “because it’s the truth,” Professor Nesson said, stripping the case to the core issue of the law’s unfairness. Judge Gertner essentially declared the case over, directing a verdict against Mr. Tenenbaum and leaving the jury to decide only the penalty.

The $675,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.

It’s been suggested that Nesson, 70, was past his prime and had taken on more than he could handle. Unlike TV trials, the real things are enormously taxing. They take longer than an hour. They use rules that TV ignores. They are about people and facts rather than theories and visions.

To say that Charlie Nesson blew it big time is both an understatement and, in all likelihood, wrong. Sure, on a practical level, Nesson’s defense of Tenenbaum was a nightmare. From his papers to his opening to his examination to his casual attire, he was an epic failure. But I doubt that was his purpose in serving Tenenbaum.

I suspect that Nesson saw Nancy Gertner’s courtroom as a laboratory to test his theories, his approaches, his novel ideas. He envisioned a trial of substance over form, of a larger truth than the petty details that concerned the RIAA. He saw a showdown between the forces of cash and carry and the freedom to exchange everything, from ideas to music, because the internet could. Once a song was created, it could be heard a billion times without any additional cost to the creator and enjoyed through a medium that allowed it to be shared at will. The creator’s work was done, and it was no skin off the creator’s nose whether it was heard by one or a billion people.

Allow me to say at this juncture that I do not agree with this view. Whoever creates something is entitled to benefit from it, and the idea that the world is entitled to freely enjoy it simply because technology has made it easy to do so is absurd. We are all able to easily break a glass window, but that doesn’t entitle us to enter other people’s homes at will and take whatever we like. Denying the creator the opportunity to capitalize on his creation to the maximum extent the market will bear is his right. I realize that kids who want a free ride have rationalized their theft to death, but it’s still theft. And I realize that thieving kids think I don’t get it.

That said, I don’t begrudge Charlie Nesson his attempt to sell his theory on a bigger stage. The problem isn’t that his vision is wrong, but that he lacked the skills necessary to make the tune in his head play in the courtroom. First, Judge Gertner shut down his fair use approach. Then, he got slam-dunked when Tenenbaum readily admitted to engaging in the conduct complained of, ending the liability phase of the trial. In other words, his lack of practical knowledge and skills served to deprive him of the opportunity to make his point, the essence of his involvement. Here he was on the big stage, and his fly was open.

In my own prickly way, this is a problem I’ve been trying to address for a long time. Most lawyers, and worse still, most judges, have a pedestrian understanding of the law. It’s exercised by rote, with knee-jerk arguments and decisions that can be predicted from miles away. Calendars are cattle drives. Defendants are cattle. The rest of us just drive the cattle forward to their slaughter.

There are some, both lawyers and judges, who have the skills and the will to fight the inertia of the system, the think daring thoughts, to understand why one case, one defendant, differs from another. But we’re constantly bumping up against the others, the ones who won’t make the arguments, or read the papers, or engage the brain before the mouth says “denied”, in order to keep the herd moving forward.

We would all be far better off if we could break this cycle of mindless herding. The Charlie Nessons of the world be the ones to challenge our cattle drive mentality. But the Charlie Nessons of the world need add their brilliant thinking to the skills and muscle of lawyers who know how to translate their vision into courtroom reality. We are better working together than we are alone. In our quest for a better system, both the ideas and the skills must come together.

This point arose just yesterday in an exchange with GW Lawprof Dan Solove from Concurring Opinions. He was annoyed with me for being critical of the isolation of law professors from practitioners. Against his better judgment, he let me have it. I’m glad he did, because it was one of the few honest exchanges we’ve had on the subject, and allowed me to let him know that I’m annoyed as well as the lawprofs who shun and ignore practitioners have an aversion to engaging practitioners in discussion, it being too likely to end up in mud-wrestling than understanding.

There are a number of reasons for this, as I see it, but spelling them out seems to just inflame the situation. Academics use a different language and tone than practitioners, and they find us offensive rather than staightforward. When they disagree with each other, they do so by nuanced complements, or at worst faint praise. We tend to be more direct, which is viewed as “vehement contempt.”

It was my hope that the conversation will continue, an open dialogue about how the law, the focus of both sides, will be better for all if we can combine the theory with the practice. Practitioners complain that our system is stuck, unjust and ineffective at achieving its goals. Some fall back on vapid platitudes to justify this (“it may not be perfect but it’s the best their is”) and would happily spend their careers defending a failed status quo. Others want to improve the system, finding perpetuation of a broken system an unacceptable way to spend one’s life.

Dan has yet to reply to my rejoinder, and no other lawprof has jumped into the breach. Perhaps this is just more evidence that scholars deem practitioners unworthy of their time. Perhaps this is evidence that they have no response, and prefer to hide inside the Academy rather than look us in the face. Perhaps this is just means that they have more important things to do than write comments on a trench lawyer’s blawg.

But given the wealth of ideas that flow around the lawprof blawgosphere, it’s a terrible shame that this separation between the theoretical and the practical persists. Let them test their theories under the crucible of practical scrutiny. How many more symposia amongst their own will serve to bring change to the law? Is this all about tenure, or is there any real hope that they can improve the system, the human condition? Then why not do something about it?

The law professors paid very close attention to Charlie Nesson’s defense of Joel Tenenbaum
. It must have been painful to watch. One of their own was finally at the helm, and steered the ship straight into the shoal. Did you learn anything from Charlie Nesson’s experiment? Anything at all?

Then let’s talk about it. Working together, we might actually make things better for people. Trust me, actually helping people is better than getting a law review article published. And it matters. I hope to hear from Dan Solove. I hope to hear from all the lawprofs. Are you tough enough to take the chance? Charlie Nesson was, and you have to give him credit for that.

What Your Email Says About You

When I opened up shop in 1983, my second big decision was stationery. Cranes Crest or Cranes Crest Laid? Engraved or not? The gravitas of a lawyer was judged by the weight of his stationery. It was a first impression thing, when all you knew about someone you had yet to meet was the quality of his letterhead. When it came to the allocation of scarce resources, letterhead was something no self-respecting lawyer skimped on.

Does anyone still buy letterhead? Would any new practitioner fret over whether engraving was worth its princely cost? Heck, how many letters are sent by snail mail today anyway?

Dan Hull, who has long made the point that an email thank you note is the clearest indication of a bad upbringing, has turned his attention to the use of email as a substitute for communication.

Are you typing or lawyering? Is either one of them working for you? I receive about 100 non-spam e-mails a day. I write about one third that many, most as replies. Usually short ones. They are often soulless, and easy to misunderstand, even when I try to be precise.

The ones I get back are often worse. The truth: most lawyers just can’t write. When they write, they “talk to themselves”–like mental patients do rocking back and forth. Typing it themselves makes all that more of a problem.

Folks, the electronic toys we have were supposed to be helping tools–not be the main event. Do we appreciate the way e-mail, search engines and social media (yes, including blogging) often degrade and dumb down the complexity of hard problems in this world? Has all this made us smarter and better? Or are we just lemmings, cattle and sheep–lulled into thinking we must be doing good work if these new tools are so amazing? Is Google–how many impulses, instincts, synapses does that dude have?–more inspiring and useful than the wonderfully storied brain of that lawyer next door?

As another tool in the box, email is fabulous. But if you pull out the email and the box is empty, you’ve got a problem. Back when many lawyers refused to use email, viewing it as a fad soon to pass and beneath their dignity, there were voices in the dark saying that email was both here to stay, and the wave of the future. They were right, with a vengeance.

But the Slackoisie have taken email to an undeserved height, challenged only by texting. It is incapable of capturing the tone, the soul, of a missive on engraved letterhead. It’s brevity often leads to misapprehension of attitude and tone. It’s lack of spelling, grammar and syntax compels one to jump to the conclusion that the sender is suffers from a severe intellectual deficit. But most importantly, it frequently fails to serve its communicative purpose.

Yesterday, I wrote about what an email address says about a person, after being informed that my old email address, sufficient at the time to convey a seriousness of purpose, was now horribly de classé under the current regime. My response was that I’m sticking to my guns, awaiting its return when vintage is cool again. After all, I’ve kept my doubleknit leisure suits in my closet just in case.

Sure, email is faster and easier than writing a letter, putting a stamp on it and taking it to the mailbox (that’s the oddly shaped blue boxy-thing on the street corner). But life isn’t always about faster and easier. Sometimes, it’s about better. And better often takes more effort.