Monthly Archives: September 2009

Bury Your Mistakes

The pending question from the Hofstra false gang-rape accusation was how Nassau County District Attorney would hide from her responsibilities.  After all, Rice had worked hard on building a “tough as nails” prosecutor image, but busily courted the female vote, and there were deep concerns that prosecuting 18 year old Danmel Ndonye would “chill” true rape victims from coming forward.

I was talking to the Blind Guy about it the other day, and he predicted that she would bury it.  And he was right.  At about 5:00 o’clock in the afternoon on a Friday, the news broke.  Rice would not prosecute.

The AP story in the New York Times says little more than that, including only the description that she was a “deeply troubled woman.”  Would that have been the way Rice described her had she not admitted to fabricating the story?  Was she “deeply troubled” because she made this false accusation that put four innocent men in jail? By that definition, the same sympathy evoked from the description could be applied to a lot of people.  Yet I doubt Rice would feel very sorry for most of them.

The Newsday story gives Kathleen Rice’s brief explanation.


“There exists no perfect solution to this case, only our best attempt at holding her accountable while encouraging real victims to come forward and accusers to tell the truth, so that we can avoid incarcerating an innocent person for even one minute,  Rice said in a statement Friday afternoon.
It’s a well-designed statement, carefully crafted to make two wholly unrelated things appear connected.  Allowing a woman who lied about a heinous crime being committed against her to avoid prosecution, causing four men who committed no crime to be arrested, smeared throughout the media, sit in jail and have their names perpetually tied to a gang rape, has no rational connection whatsoever to encouraging real victims to come forward.  It does, however, have a strong connection to encouraging false accusations, since the conditions of counseling and community services offer little disincentive to not take the risk.

And notice the concern about “incarcerating an innocent person for even one minute?” But Rice never apologized to the four men that sat in jail for her role in blindly accepting the word of this “deeply troubled woman.”  She didn’t even thank the criminal defense lawyers for the men who brought forth the proof that Ndonye was the criminal, not the boys, thus saving her from the destiny of Mike Nifong.

Timing is key to the success of this maneuver.  By Monday, when people get back to paying attention to the news, this will be an old story.  The Saturday paper is the least read paper of the week.  Over the weekend, nobody will know.  By Monday, nobody will care. Chances are good that something new will happen over the weekend, and if Rice has any luck at all, it will be a drunk driving death of a child.  She’s very strong on drunk driving deaths of children.  They get prosecuted for murder, and she gets to rail about how she’s tough on crime and saving us from the demon.

She’s a shrewd one, that Kathleen Rice.

Read ‘Em And Weep

Over at the Volokh Conspiracy, a battle royale raged over whether legislators should be required to read bills before voting on them.  While no one suggests that legislators shouldn’t read bills, or that they shouldn’t have sufficient time to read bills before voting if they desire to do so, the argument is focused on whether the actual reading of a bill by the actual person voting on the bill should be mandated.

There are numerous posts on the subject already, and well worth the read.  But in response to Jonathon Adler and David Post, Eric Posner has offered a response to the imposition of a bill-reading mandate that incorporates some thoughts that go well beyond the topic at hand.


The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings.
We are constantly confronted with people who are fed up, and rightfully so, with the complexity of law, and who demand a simple solution to the law.  There’s always a simple solution, and it has such surface appeal that there is always support behind it arguing that we, lawyers, have made a horrific mess of things in our effort to overlawyer every iota of the human experience.  The snappy response is to quote H.L. Mencken, “For every complex problem, there is a solution that is simple, neat, and wrong.”

In the context of bills, there are two problems with the obvious “just read the frigging bill” position.  Much of what’s in a bill is technical stuff that isn’t substantive to the law proposed, and much of what’s in the bill requires a depth of knowledge on the internal subject of the bill that is beyond a legislator’s ken.  In other words, they would learn more about a bill from a trusted expert on the subject who has read the bill than by reading it themselves.  And yet, this still isn’t an excuse for not taking personal responsibility for the critical duty to know what you’re voting on.  After all, if your “trusted expert” is not to be trusted, or not so expert, then the legislator becomes a patsy.  That won’t do.

This problem could be alleviated if laws were written so as to be clear and comprehensible to an ordinary person of reasonable intelligence with a high school education, right?  Then, even a politician could understand them and would have some clue what he was voting on.  This is a core belief of those who contend that the law has become overly and needless prolix.

Orin Kerr, however, takes the wind out of their sails:


Complicated Karen: I’ve been thinking about how much privacy the law should give to private e-mails held by an ISP. A lot of people think e-mail should be protected by a warrant requirement. What do you think?
Clear Chris: I completely agree. I propose a simple rule: E-mail should be protected by a warrant.
Complicated Karen: Great. Now let’s start thinking about some exceptions. Imagine an Internet subscriber wants the ISP to disclose the contents of his e-mail. Maybe he has forgotten the password, or he needs an authenticated version. Should we have an exception for consent?
Clear Chris: Well, yes, of course. If the person really consents, then the government shouldn’t need a warrant. That’s obvious.
Complicated Karen: Great. What kind of standard would you choose for consent? Knowing? Knowing and voluntary? Intelligent? Is it consent in fact? Would you allow implied consent? And what about third party consent? How about business e-mail?
Clear Chris: Woah, that’s a lot of questions! I don’t really know, to be honest. I just want the exception to be clear so people can understand it.
Complicated Karen: Sure, I agree, clear is great. At the same time, we need to think about just what kind of consent you have in mind. Otherwise it will just punt the issue for the courts to make up the law later on. Moving along, what about an exception for emergencies? Should we have an emergency exception? For example what if the police tip off the ISP that the e-mail is being used by a kidnapper, and the government would need several hours or more to get a warrant. Should we allow emergency disclosure if the ISP wants to disclose?
Clear Chris: I don’t know, once we start getting exceptions, it seems like the exceptions are going to swallow the rule. But I’m not a nut; if there’s really a kidnapping, and the ISP is willing to disclose, I think an emergency exception for kidnapping is reasonable. But I want the exception limited to kidnapping.
Complicated Karen: How about terrorists attacks? Serial killers? Maybe we should craft a general exception for severe emergencies?
Clear Chris: I’ll have to think about that one; I’m pretty skeptical, but I’m not sure I would want to totally rule that out. Let’s come back to that one.
Complicated Karen: Sure. What about if the ISP is outside the U.S.? What then?
Clear Chris: Who has an e-mail account outside the U.S.?
Complicated Karen: A lot of people do, actually. Someone in the US might have an account with servers in Canada. And for that matter, someone in Paris might have a Gmail account in the U.S. Do you want to require a warrant for all of these cases?
Clear Chris: I’ve never thought about that one, I have to admit. But well, yeah, sure, let’s have a warrant requirement for those. I want a clear and simple rule, so let’s keep it clear and simple.
Complicated Karen: Sure, that’s fine. But to do that, we’re going to modify some other laws. Under current U.S. law, U.S. officials can’t get a warrant for overseas: warrants are traditionally for U.S. use only. And how do you want to create U.S. jurisdiction over crimes occurring abroad? If a person commits a crime in France, that can’t authorize a U.S. warrant under U.S. law. We either need to negotiate a treaty with the French government to handle that, or else we can say that French crimes committed in France are U.S. crimes, too, allowing warrants to be issued in the U.S.
Clear Chris: Yikes, are you nuts? Suddenly you’re talking about the treaties and French law, and all I wanted to do was have a simple rule! You keep trying to make things complicated. Why not just make it simple?
Complicated Karen: I’m trying to keep it simple, actually. But to make the law what you want it to be, you need to think about these issues: Otherwise you’ll announce a simple rule but it won’t have any legal effect because of other aspects of existing law.
Clear Chris: Lawyers! You guys always like to make things complicated; No wonder you bill by the hour.

As he concludes, it’s not that clear and concise laws aren’t a good thing and a goal, but that there are competing interests between clarity and comprehensiveness that must be satisfied.  This isn’t to say that we don’t have bad, overly prolix, incomprehensible laws, or that every law needs to be as lengthy and painful to read as it is.  No one suggests that Washington is doing a bang up job on drafting legislation.  But that the cure could be worse than the disease.

And, of course, none of this alters one basic principle that shouldn’t get lost in the sauce. No bill should sail through so quickly that any legislator who wants to read, digest, comprehend it is not given the opportunity to do so.  Like, oh, what happened with the USA Patriot Act.

False Advertising: The Norm For The Future?

Amongst the many things that come across my email are “press releases” announcing wondrous things of little consequence.  One such release was about a new website called New York Criminal Defense Lawyer.  It caught my eye.


New York Criminal Defense Lawyer is an industry leader in legal law information for the state of New York and their website expansion marks a recent growth pattern for this popular website.

An industry leader is quite a claim for a website whose existence is maybe 12 minutes old.  But hyperbole is like breathing to flacks, so it’s hard to let silly things like that put you off.  But if this site offers “legal law” information specifically directed toward New York criminal defense, it’s something I ought to know about.  So I checked it out.

Not surprisingly, it was a sham. As it turned out, it was the website for Rachel Kugel, a lawyer whose name I had never before heard.  I should have stopped there, but I didn’t.  I couldn’t help but wonder who she was, given how audacious her website and claims were.  Aside from Alexis Neely, who bills herself as “Americas Favorite Lawyer” despite her positioning as the Mother Teresa of legal marketing, this was as bold, if nonsensical, a marketing effort as I had seen.

Near as I can tell, this former Cardozo Law student was admitted in 2005 in New York and New Jersey, where she does drunk driving cases.  Since then, her claim to fame is appearances on Fox News and Court TV, where a nice looking young woman is always appreciated. 


Rachel took this passion and continued it during law school at Benjamin N. Cardozo School of Law in New York City. There she was selected to work on cases at the Innocence Project, devoted to exonerating the wrongly convicted through DNA evidence. She also worked on cases through the Criminal Defense Clinic and garnered an internship with the Legal Aid Society Criminal Defense Division in Manhattan.

Rachel then worked for a well known medical malpractice law firm also in Manhattan. Through her experience with criminal defense work and then her work on cases involving medical and scientific evidence she began to combine her skills and work on criminal matters that involve these issues.

Rachel continues to hone and sharpen her skills attending continuing education classes on DUI defense and medical and scientific issues all over the country. She is also very active in the community fighting for fair treatment of the accused and prisoner’s rights.

Rachel is in private practice in Newark, New Jersey, is admitted to the State Bar of New Jersey and is a member of the American Trial Lawyers Association.


So she had some exposure during law school, and after a stint with a med mal firm, she’s trying to break into criminal defense.  Good for her.  There are some funny aspects to her website, particularly the “fees” page, which says



However, most cases are relatively simple for an experienced defense attorney like myself. I know exactly what to expect in court, and I can quickly size up your case, and quote you a fee during a free phone consultation.

And she takes credit cards, which makes a quickie plea that much faster.

But then came the curious part.  It wasn’t just a matter of enjoying some TV talking and a desire to become a lawyer that drove her to these marketing extremes. it turns out that she is a Marketing Expert!


Hi! It’s Rachel Kugel, Esq., the Million Dollar Practice Designer! I am so glad you found this site. Everything you need to take your law practice to the next level is here. Design the law practice, and life, of your dreams…..read on…..



“REVEALED:  3 SIMPLE STRATEGIES THAT CAN DOUBLE YOUR LAW PRACTICE INCOME! GET MORE PROSPECTS TO RETAIN YOU, EVEN WHILE YOU INCREASE YOUR FEES.”


Now hyperbole is one thing, but “the Million Dollar Practice Designer?”  Come on.  But there was more.



“Give Me 60 Minutes and I will Show you How I Started Closing 90% of Prospects, and Doubling My Fees All Without Going In To The Office”



Dear Friend:



Hi, I’m Rachel Kugel, lawyer and entrepreneur. I am finally ready to reveal the secret of how I went from struggling solo lawyer to the owner of s thriving law practice that makes me all the money I need and then some while still leaving me the time and freedom to actually enjoy my life…..a feat I once thought was impossible in the practice of law.
How does this nice, young lawyer go from budding DUI lawyer to marketing guru.  What is it that drives this shameless pretense?  Obviously money, but is there no end to the absolute garbage that has permeated both the internet and the minds of young lawyers?  For those of you who take umbrage at my castigating the legal marketers, pretending the “everybody does it so I have to do it too,” how does this one square with your self-serving rationalizations?

For all I know, I may have trained this young lady at the Cardozo ITAP program, where I teach trial practice.  For all I know, she may be very nice, very dedicated and very hardworking.  For all I know, her interest in criminal defense may be sincere.  But none of that matters given how she’s sought to promote herself in this disgraceful way.

This seems to be more than just a growing trend amongst young lawyers, but a pervasive belief that they are entitled to craft a false persona, spread it far and wide, for the purpose of self-promotion.  This is the road to success.  This is the future of law as far as they are concerned.  And if it doesn’t stop, lawyers will drown in a pool of putrid deception.

The only message that young lawyers hear is that marketing, marketing, marketing, is what makes a lawyer. What message are you sending?

Correction: I have been informed that I have incorrectly used the phrase “America’s Favorite Lawyer” with regard to Alexis Neely. In fact, it is “America’s Favorite Lawyer™, ” as she has registered the trademark.  My bad.

Not Every Nurse Loves Cops

When the story broke about the forced catheterization of a suspected drunk driver, whose blood and breath just wasn’t cooperating, the question arose as to why healthcare professionals were so compliant with police demands.  We now have an answer, courtesy of Chicago Nurse Lisa Hofstra.


Lisa Hofstra was the nurse in charge of the emergency room at Illinois Masonic about 4 a.m. on Aug. 1 when she said an officer named Rodriguez asked her to take blood samples from a man to determine his blood-alcohol level, according to a lawsuit filed in federal court. Hofstra allegedly told the officer the man had to become a patient first and she wanted to consult with her supervisor.

The officer cuffed her and placed her in the back of a squad car, according to the lawsuit.
The question wasn’t compliance with the officer’s demand, but timing.  He wanted it now. She refused to jump.  What makes this particularly unusual is that cops and emergency room personnel work together regularly, and usually have a strong bond.  But Lisa Hofstra didn’t feel the love as she was held captive by Officer Rodriguez (first name unknown).

 
 The question raised is whether the cop was simply so taken by his omnipotence that Nurse Hofstra’s failure to jump upon demand outraged him to the point of seizure, or whether there was some other factor at work.  Chicago’s own Mark Draughn, the  WindyPundit, isn’t buying that this was merely the refusal to draw blood upon demand, but speculates that Lisa Hofstra did more.


I don’t know any more than this, but clearly something crazy happened here. What kind of nutball cop disrupts the operation of a hospital emergency room by dragging away the triage nurse for no good reason?

There seems to be something missing from this story, however. I doubt that even the craziest nutball cops do things like this (very often) to people who are courteous and polite. My guess is that Nurse Hofstra “mouthed off” or committed some other imagined offense that cops like to interpret as a crime. Triage nurses have to be decisive and firm with demanding people, so perhaps she was a bit brusque in her dealings with officer Rodriguez.
Mark may be right, particularly given his qualified statement that it could be some “imagined offense that cops like to interpret as a crime.”  That’s a hole big enough to drive a Mack truck through.  But I see no reason to speculate.  After all, the cop walked into Nurse Hofstra’s home making demands, not the other way around.  Her demeanor wasn’t in issue as she gets to behave any darn way she wants in her emergency room.

The problem is that the power to seize is unchecked on the street.  Sure, it is subject to review afterward, but there was no one in that ER equipped to put a stop to Officer Rodriguez’s insanity.  What if patients died awaiting care?  No doubt Officer Rodriguez had more important concerns on his mind, like proving the driver he stopped was drunk than to consider the ramifications of his exertion of authoritah.

Given the generally cooperative nature of police and healthcare workers in the ER, it’s likely that Rodriguez’s expectation was that his request, which turned immediately into a command upon Lisa Hofstra’s failure to immediately accede, would be performed then and there.  This points not to the problem of medical priorities, or medical ethics, or even the cooperation between ER personnel and cops, but to the inability to stop a cop from doing whatever he, in his fit of pique, chooses, even if that means he gets to hold a charge nurse hostage until a hospital ER bows to his will.

Of course, it’s just another isolated incident.

H/T Turley

Pottawamie and the Shaking Prosecutor Syndrome

The Supremes will soon hear oral argument in a case that few Americans would believe could arise today, yet reflects the ugliest underbelly of the failure of the criminal justice system, Pottawamie v. McGhee.

The facts are that prosecutors, faced with the notorious shotgun death of a white former police captain, John Schweer, who was working as a security guard in the early morning of July 22, 1977, needed to convicted the “perpetrators” of this heinous crime.  What they did next was unthinkable.  From the District Court opinion:


In essence, each of the asserted claims allege that the prosecutors Hrvol, Richter, and Wilber improperly concealed exculpatory evidence; concealed the alleged coercion of witnesses; participated in court proceedings; coerced witnesses; participated in the Schweer murder investigation; and conspired with the respective police defendants to commit the alleged misdeeds against the Plaintiffs.

The criminal defendants spent the next few decades in prison.  The question now arises from a 1983 action against those who conspired to engage in the big three wrongs that prosecutors can commit: conceal exculpatory evidence, coerce evidence, manufacture inculpatory evidence. Despite doing so, are prosecutors due absolute immunity (like judges and witnesses), qualified immunity (like police), or no immunity at all?

Over at Crime & Federalism, Mike parses the Department of Justice amicus brief, which argues that the “solution” to prosecutorial wrongdoing isn’t liability to those harmed under Section 1983,   Here’s the DOJ solution:


If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. 

What is most extraordinary about this argument is that the institutions upon which DOJ would rely are the ones that failed entirely in this case, both to protect beforehand and to redress afterward.  As one might expect from the government, its answer is to trust it to clean up its own mess.  No need for its victims to get their hands dirty. No need for the victims to be compensated for the 25 years lost.

Another brief, however, from a group called Black Cops Against Police Brutality, tells a very different story.  Drug & Device Law, Mark Herrmann, and provides an exceptional overview of the historical failure and perversion of the criminal justice system in the wrongs done blacks.  As Mark ably demonstrates, the problem isn’t merely an historic relic, a trip down memory lane to Scottsboro, but a problem that continues to this day, our facile beliefs to the contrary notwithstanding.



We can imagine few rulings of this Court that would send a more negative message about American criminal justice than to permit white prosecutors to frame African-American suspects for the murder of a white police officer, admit the outrage, and then walk away with impunity, after their victims have wrongfully suffered twenty-five years in prison.

The BCAPB brief argues that prosecutors should be afforded only qualified immunity rather than absolute immunity, eschewing the no immunity position.  It derides the Pottawamie argument that without absolute immunity for prosecutors to engage in flagrantly outrageous wrongs, that prosecutors will be too afraid of liability to perform their jobs.


The Justice Department’s picture of government lawyers quaking in their wingtips lest the pursuit of criminals subject them to amages is demonstrably false.

Mark then runs through the reality of indemnification, an unfortunate fact that shifts the burden of liability for the wrongdoing off the prosecutors and onto the taxpayers.  But the more pointed argument is that police, despite receiving only qualified immunity, somehow manage to do their job, even to the extent of dying in its performance, despite this.  There is no equivalent Shaking Cop Syndrome.

From a policy perspective, offering absolute liability provides no incentive to prosecutors, or the governments for which they work, to avoid deliberate and intentional violations of constitutional rights.  The DOJ claim, that the government can police itself, thank you very much, is laughable.  It just doesn’t happen, and has never happened, even though it might seem in theory like a satisfactory solution to someone who believes in unicorns or the “new professionalism” of police.

Mark goes on to argue that the government’s “fear” of a tidal wave of suits against prosecutors is illusory.



Under Buckley’s functional test, much prosecutorial conduct is still covered by the absolute immunity standard. The volume of cases in which prosecutors play a significant enough role in pretrial investigation to be subject to even frivolous allegations under a qualified immunity standard is much smaller than the number of cases in which the police are vulnerable to suit.
Which raises the bottom line question for BCAPB: Why should prosecutors be held to a lower standard than police?  One might suspect, perhaps even desire, a higher standard of integrity from lawyers who fulfill the governmental function of prosecuting citizens.  Would that be too much to expect?

Kudos to Mark Hermann for an excellent brief, and for being there to fulfill the critical function of representing amicus curiae in this case.  He’s made this fellow curmudgeon proud.

Naked Marketer Mudwrestling: Bodine v. O’Keefe

The issue has been joined.  Larry Bodine raised quite a ruckus when he concluded that twitter was a marketing waste.  He then compounded the challenge when he reiterated his views at Law.Com’s Legal Technology page.  It was more than Kevin O’Keefe could stand, and his head exploded all over the front page of Real Lawyer Have Blogs. 

Bodine’s post is directed at the areas he considers most fruitful for those who prefer to walk the streets in hotpants.



You could hear the collective groan when Twitter made the cover of Time magazine and marketers realized that they had to become familiar with yet another online medium. There’s Facebook, MySpace, Naymz, Spoke, Plaxo, LinkedIn, Martindale Connected, Legal OnRamp, JD Supra and listservs, to name a few online social networks. It seems overwhelming.

The good news is that marketers and lawyers can ignore most of them.
Or lawyers can ignore marketers, but that’s just my two cents.  Larry then launches into his “things to ignore” mode.


• Begin by eliminating the time-wasters — and in my opinion, the primary example is Twitter. Consider this. A new study by Pear Analytics found that: 40 percent of the tweets on Twitter were “total pointless babble.”


• 10 percent of Twitter users account for over 90 percent of tweets, according to Harvard Business School.


• Among people with a Twitter account, 60 percent drop out after one month and never come back, according to Neilsen Wire.


• 55 percent have never posted a tweet, according to HubSpot.com.


This is where things get dicey.  It’s not really about loving or hating twitter, but where to effectively market.  Every 12 seconds, a new site opens that proclaims itself to be the “industry leader,” a curious claim given that the totality of their existence is 12 seconds.  But hey, we’re talking marketing here so there’s no room for truth or accuracy.

Lexblog’s Kevin O’Keefe is an unabashed cheerleader of twitter.  He loves it.  He believes in it. He promotes it with a vigor that most men reserve for marital bliss.  Maybe even more vigor than that.


The first third of the article went way out of its way to belittle the power of Twitter as a relationship building and networking tool. This should comes as no surprise as the author of the article is making a name for himself in bashing twitter.

Based on the results I am hearing lawyers are getting by building relationships through Twitter, and getting clients as a result, I am beginning to think that Twitter offers the highest ROI of any networking/relationship building tool.

I suppose if Legal Technology News were around in the days of Alexander Graham Bell, they’d be siding with the lawyers who thought a lawyer’s use of a phone in rendering legal services was clearly unprofessional and, of course, unethical. A small group of radical lawyers decided to use the phone, probably for perceived mindless babble.

Smack.  The only thing missing from Kevin’s retort is “Bodine, you ignorant slut.”  But what really riled him up isn’t Bodine’s position, but that it appeared on the Legal Technology page of Law.com.


Perhaps I shouldn’t get worked up about misguided advice from someone who I don’t believe understands Twitter, but Legal Technology News decided to the run the story. A story that will passed around by managing partners and chief marketing officers clinging to the past. A story that will needlessly keep the legal profession lagging behind the industries, corporations, and consumers we serve. That’s a disservice to the American lawyer.

A disservice to the American lawyer?  Well, that may be a stretch, considering the entirety of marketing is a disservice to the American lawyer, including turning twitter into part of the vast cesspool of legal marketing.  But again, that’s just my two cents.

Enter Monica Bay at the Common Scold, who also happens to be the editor of Law Technology News for ALM.  Monica jumped into the middle (fully clothed, however), with this:


Oh please.

 1. For starters, get your facts right, Kevin: This article never ran in Law Technology News.  It did, however, run in an ALM newsletter, and was picked up on Law.com’s Legal Technology site. 


2. Larry Bodine (who Kevin declines to ID in his post) is a member of the LTN Editorial Advisory Board, and often writes controversial articles that get everybody talking and thinking. This is a good thing.


3. As for whether LTN — or any other ALM entity — should have run the article: The last time I checked, LTN (and ALM) readers [lawyers, IT professionals, paralegals, GC, vendors, et al] are smart, savvy, and like to debate.


Nothing like patting yourself (and your readers) on the back a bit, there, while just a tad overly defensive.  I sure hope you didn’t hurt anything with that extended reach.


In fact, I WANT all points of view in LTN, because that’s how we best serve the entire spectrum of our wonderful legal community.

That’s why I choose a wide array of articles (and opinions). And why I regularly participate in panels discussing important technology trends and issues. Oh yeah, btw, O’Keefe participated on two recent ALM panels that I moderated, talking about how lawyers can use Twitter (LegalTech NY 09 and LegalTech West Coast 09).
All points of view includes Kevin’s throw down to Larry, who didn’t ask for any help in fighting off the forces of O’Keefe.  Larry’s stance is clearly controversial in the face of the many voices trying to make a buck off lawyers and twitter, or the techno-lawyer-cheerleaders who have enough free time on their hands to travel from conference to conference proclaiming how twitter built them a huge law practice, and how for a very reasonable fee they can do the same for yours.

For observers of this intramural war, this is hugely amusing.  I’ve come to enjoy twitter, which grows on you (fungus analogy intended) provided you don’t get caught up in the whole follower number deal. There is no prize, by the way, for the lawyer with the most followers.Like Kevin, I’ve heard of some lawyers who claim to be making millions off twitter, though their claims seem entirely contingent on a couple of anomalous factors.  The first  is that they are in a very narrow niche practice in a peculiar place, where lawyers around the country need to find someone to meet unusual criteria and aren’t too picky when it comes to the competence of the lawyers to whom they refer cases.  Twitter thus serves as an alternative way of finding the oddballs.

The other factor is that twitter, at 140 characters, prevents lawyers from coming off too stupid.  There’s only so much stupidity one can fit into a twit.  Blog posts, on the other hand, have enormous capacity for proving that a lawyer is an idiot.  Even a half-witted lawyer can feign a modicum of competence by merely retwitting articles within his niche, thus completely concealing any glaring gap by living off the work of others.  These lawyers are the remoras free-riding on the backs of sharks.

But there are more “lawyers” who think their futures are bound in becoming social media experts, and twitter is an opportunity for them to rake in the dough by teaching lawyers who are incapable of figuring out how to market themselves in 140 characters. 

Personally, I hope Larry Bodine wins the day, not because I believe that he’s right (though I do) but for purely selfish reasons.  Wouldn’t it be really nice if there was one online street where you didn’t have to dodge the girls in hotpants asking if you want to go on a date?

The Hofstra DA Goes To School (Update)

I’ve been reluctant to post about the Hofstra rape case, or rather the Hofstra false rape case, because the scenery has changed with far greater speed than a car passing by on the Long Island Expressway.  It’s swiftly gone from cops announcing their guilty 5, raping a girl in a bathroom lured their by someone taking her cellphone, to one of the evil males taping consensual sex on his cellphone.

The false accuser, confronted with news of the video, spills her lies. and suddenly the world turns 180 degrees. The debate now shifts to whether the accuser should be publicly named and prosecuted.  The dilemma has been well noted by Emily Bazelon, who has since been called out by Glenn Reynolds for her failure to name the perpetrator of the false rape claim, Danmell Ndonye.  And Ann Althouse thinks it’s time for women to grow up and take responsibility for their sexual conduct, Ndonye crying rape to avoid being thought of as a slut.

Big issue punditry aside, there’s an actual decision to be made here, and there’s been no focus on the fact that the local District Attorney, Kathleen Rice, has yet to make that issue.  Granted, she Nifong’ed herself at the start, jumping aboard the guilty bandwagon as quickly as she could, and jumped off even more quickly hoping nobody would notice.  But Rice, who has set up her political fortunes as an avenging DA, has yet to do the one thing that district attorneys are charged to do.  Decide to prosecute.

A  Newsday article by Ann Givens purports to lay out the considerations that Kathleen Rice is weighing in her decision of whether to charge Ndonye.


On the one hand, they will want to discourage people from lying to law enforcement, and show that there will be consequences for doing so, experts said. On the other, they don’t want to discourage legitimate rape victims from coming forward, or discourage people who lied at first from telling the truth later on, experts said.

This explanation is quite amazing for missing the point on both sides of the issue.  The perpetrator did not merely lie to law enforcement.  Martha Stewart lied to law enforcement.  This woman falsely accused 5 men of rape, for which they were arrested, incarcerated and had their names and images spread far and wide as rapists.  She importuned law enforcement, always happy to nail 5 black men for sexual deviance, by alleging what she knew to be heinous conduct, and all to cover up her own conduct, her shame of being thought of as a slut who willingly chose to engage in sex in a bathroom with 5 men.

And the flip side of the thought process is even less valid.  A false rape accuser does nothing to inhibit a true rape victim from coming forward.  There’s nothing similar about the situations,  True victims have no fear of a video revealing them to be a liar.  True victims have no fear of being exposed as a fraud and criminal. 



Lois Schwaeber, director of legal services for the Nassau County Coalition Against Domestic Violence, said cases where people make false reports of rape hurt all legitimate rape victims seeking justice. But she said prosecuting someone who has made a false report will discourage real rape victims from coming forward as well.

“They may feel that if they can’t support the charges they are making with enough proof, they could be charged.”

Perhaps she didn’t notice that part where Ndonye admitted that she fabricated the rape.  What does a false accuser have to do with a real victim?  Or do these lines not exist when it comes to such claims?

Nor does the secondary rationale hold water.  Ndonye didn’t tell the truth because she had a sudden flash of conscience about the crime she committed and the harm she had done.  She cracked because she was confronted with the fact that she was a liar.  You want an incentive to tell the truth?  Videotape your sexual encounters.

Of course, had the sequence of events been slightly different, and it was revealed that one of the five men in the bathroom had taped the encounter before Ndonye lied, the papers would have had a different lede.  Taking photos of bathroom sex is certainly lurid enough to be worth a story.

This all amounts to a flag being run up the pole to see who salutes.  Rice is up for re-election, and opposed by a legitimate and well respected contender for the post, Joy Watson.  She doesn’t know which  direction will get her the most votes, and the least criticism.  There’s a huge risk for Rice in charging Ndonye with a crime, as shown by the way Newsday has framed the considerations.  Rice doesn’t want domestic violence and rape advocates to jump down her throat for discouraging real victims.

But Rice knows that a crime has been committed.  Rice has the evidence to prove her case.

Rape is a heinous crime, and Rice was all too happy to make sure the charges against the “rapists” were broadcast far and wide.  When she ended up on the wrong end of the story, though, she never apologized to the five men who she put in jail because of the false allegations.  And now she tests the waters to keep her political hands clean for her failure to charge the source of these heinous false allegations. 

As interesting as the thoughts of pundits on the subject might be, the real decision sits in Kathleen Rice’s hands.  The decision won’t be made because of right and wrong, crime or no crime, the effect on real rape victims.  The decision will be made on what will make her constituents want to re-elect her and what she can get away with.  If this wasn’t true, the decision would be a no-brainer.

Update:  At 5 pm on a Friday, Nassau DA Kathleen Rice announces that she won’t prosecute Ndonye, the false rape accuer.  That’s how one buries a story so it’s lost over the weekend and never heard from again.  Coincidence?

Tased For Being Disabled While Black

As Jeff Hoard at True/Slant says, “[e]ach time I think there is no way there can be a more outrageous incident,” another comes along to prove him wrong.  Today’s involves Gregory Williams, a double amputee in Merced, California, who was tased twice, apparently for his lack of cooperation in allowing cops to push him out of his wheel chair so that he could crack his head open on the ground. 

And then there was the humiliation :



Even worse for him, Williams says he was publicly humiliated after his pants fell down during the incident. The officers allegedly left him outdoors in broad daylight, handcuffed on the pavement, nude below the waist. Williams said the arrest also left him with an injured shoulder, limiting his mobility in his wheelchair.
And then there was the six days in jail without being charged.  At least prosecutors decided not to be complicit.  But what was the point of pulling his pants down and exposing him publicly?  Were they trying to see whether he was hiding a pair of legs somewhere?


Jeff Hoard is right.  When you think it can’t get any worse, the cops keep proving you wrong.  I wonder what will top this one? I can’t imagine, but that’s just a product of my not having the capacity to see the world through the eyes of a police officer.

The Downside of Client Reviews

It’s unclear why it just came to light, or how it managed to get through the review process, but one lawyer on Avvo received an anonymous review by a purported client, and it wasn’t pretty.  Since it’s likely that the review will be removed soon, after having been up for about a month at this point, here’s what was said:




Good but fishy

Posted by: anonymous, 2009-08-03 about 1 month ago.




  • I do not recommend [attorney].


  • I used [attorney] 1-6 months ago.


  • [Attorney] handled my Insurance matter.


  • I have previously worked with 1-2 lawyers.

Client Review:

She responded to me promptly, but when it came down to getting the case filed in court she was not there for me as initially promised. She lied about the reasoning for not wanting to help me and this made me think twice about her as a lawyer!
There is now a long list of lawyers flagging this comment as wrong, primarily on the basis that the reviewer was anonymous, precluding the lawyer from responding, or even knowing which client was dissatisfied.  Obviously, I’ve eliminated the lawyer’s name from this post since there’s no way to know whether this complaint was legitimate or some variation on the Andy Nolen astroturfing scheme.

The problem posed is what to do about negative reviews.  Clearly, the entire point of reviews is lost if only positive ones can be offered.  So much for the claim of providing useful information for consumers when it’s only one-sided.  But then, it’s hardly a stretch to understand why a dissatisfied client would want to post a negative review anonymously.  Wars have been fought on the internet over anonymous posting and commenting, from the neo-Publius to the no-weenies to the Ned Beatty Rule.  Each position has its merits.

This situation defies solution.  It doesn’t matter what frilly words are used to describe the wonders of client reviews, or the wonderful benefits it offers the consumers of legal services.  It is inherently flawed, and this is why.  If only positive reviews are posted, then it’s not only unhelpful to consumers, but misleading.  But if clients can’t review lawyers anonymously, then it will have a significant chilling effect on negative reviews, and it’s completely understandable why people don’t want to identify themselves when calling out a bad lawyer.

The benefits of the concept is easy to understand.  Law consumers would have a resource to use to determine whether the lawyer behind the smile lives up to his rap.  The detriments are also easy to understand, and aside from the illegitimate complaints and the astroturfing, there remains the fear that clients will review a lawyer poorly because of dissatisfaction with the outcome of a case, refusing to recognize that lawyers aren’t plumbers and can’t guarantee that they’ve fixed the leak.  Let’s face it, clients aren’t concerned with the effort or the process, but the result.  That’s a fact of life for lawyers.

I was asked yesterday if I was for or against anonymous reviews.  Neither is my response.  I don’t think the system can work. The good intentions of Avvo aside, it is an inherently flawed concept that at best misleads and at worst wrongly harms.

Jericho Catches Fire

When last we visited Jericho, Arkansas, a police officer shot the assistant fire chief in the back inside the courtroom.  A story this ridiculous demands an update.  And I’m here to oblige.  But it’s not likely to be what you expect.


Don Payne says he was shot in the back by a Jericho police officer over two weeks ago now. He says he was planning on getting back to work as soon possible, until he received a termination letter from the mayor. “As it comes to my attention of the improper behavior that you displayed as the assistant fire chief of the town of Jericho”: Those are the words of Jericho mayor Helen Adams to Don Payne.

This would be the improper behavior of using his back to stop the travel of a bullet.  A waste of government resources perhaps?  Mayor Helen thereupon relieved Payne of his fire chief duties.  He was fired from his volunteer job because he was shot.

As you will recall, the police chief decided to disband the police force “until things calmed down.”  After all, you wouldn’t want to have a police force in an uncalm town of 174 people.  But even small towns can burn.



All of Jericho’s 18 firefighters have quit in a move to stand by a former assistant fire chief who was shot by an officer at city hall on Aug. 27 and then fired by the mayor last week, according to WREG-TV.

Remarkably, there’s no information about the cop who shot Don Payne in the back in the Jericho town courtroom.  It’s unclear whether the Mayor really loves the cops or really hates the fire department, but for the time being, Jericho’s got neither.