Monthly Archives: September 2009

The Loser Is Always Right

As much as I toy with the heartstrings of marketers, there’s one who usually manages to stay one up on me, marketing genius and philosopher, Seth Godin.  If only the people I do business with paid attention to him. If only.


Given the choice between acknowledging that your customer is upset or proving to her that she is wrong, which will you choose?

You can be right or you can have empathy.

You can’t do both.

It’s bad enough that the only voice you can get on the phone when you have a problem is one that speaks broken English in a thick accent.  You know they have a script, and that they can’t do anything that’s not on the script.  You know they are going to mouth the words that they are very sorry for your problem, and then read the portion of the script that explains why it isn’t their fault.  If there is no script for that particular problem, then they are going to say that it’s their policy not to be able to do anything to help.  And they will close by asking if there is anything else they can do for you.  Else?



It’s not the nature of capitalism to need to teach people a lesson, it’s the nature of being a human, we just blame it on capitalism. In fact, smart marketers understand that the word ‘right’ in “The customer is always right” doesn’t mean that they’d win in court or a debate. It means, “If you want the customer to remain a customer, you need to permit him to believe he’s right.”

If someone thinks they’re unhappy, then you know what? They are.
If it was an option, I wouldn’t buy anything from anyone.  I wouldn’t use anyone’s services.  It would save me from dialing the 800 number of death.  But given my limited skillset, I need to buy things.  Despite the wind blowing in my face, I spit when something goes wrong. 

My personal preference is to get an honest response.  I’m a sucker for truth.  When the customer service rep tells me that they get a ton of calls because their product sucks, or it’s their company policy to gouge the customer at every turn, I can appreciate that.  I don’t like it, but at least my question is answered. 

But when I contact a small business, where the actual owner, or maybe the owner’s husband, gets on the phone, there’s no company policy to hide behind.  These are the ones who take problems personally, and are most inclined to argue the point.  As Seth points out, however, it’s really not an argument at all.  They want to prove to me that they didn’t do anything wrong.  I still have a problem. 

Sometimes, the owner will walk me through a process which, by its end, will show me where I went wrong.  This is not done to prove that they’re right and I’m wrong, but to resolve my problem by educating me.  Sometimes I am wrong, and by doing it right the product or service issue can be corrected.  That’s all I want.

But more often, the reaction is defensiveness, telling me that I don’t have a valid issue or that my problem simply can’t be.  There’s nothing more absurd than my sitting by the phone, broken widget in hand, being told that the widget can’t break.  If it’s a one shot purchase and they want to guarantee that I will never do business with them again, this tactic is perfect.  Of course, they also guarantee that I will let anyone I speak with, who might be interested in their widget, not to buy from them.  If it’s valuable enough, I might sue them.  If it’s socially important, I might write about it.  If they piss me off enough, I might do both. 

But I won’t buy from them again.  They’re right and I’m gone. Cause and effect.

After a conversation yesterday with a Cablevision CSR about the charge on my bill for a cable box that I never wanted but that they insisted I take unless I was prepared to forego receiving the channels I was otherwise paying for, I wondered whether the cost of acquisition of a customer was worth the cost of retention.  The price involved was $6.75, not enough to go through hoops but, in conjunction with the other aspects of Cablevision that make the hate personal, enough to make me call Verizon FIOS.  They already drove me to FIOS for my internet connection, and cable TV was their last foothold in my house.

The fellow on the phone told me that no way, no how, was Cablevision going to give me the box for free, or give me all the channels I was paying for without the box.  I asked whether it was worth it to Cablevision to lose me as a customer.  He told me it was. 

In a couple of weeks, I’ll get a call from a salesperson for Cablevision begging me to “come back.”  This will happen too late to matter, since by then I will be happily ensconced in the FIOS family plan.  They should know this, but still they will offer me some deal that will give me far more than I sought during my call yesterday.  I will tell them that it’s a shame they didn’t offer me the deal before I left them.

Why, if you want me to purchase your goods or services, if you advertise, if you run promotions, if you solicit my business, would you want to make me hate you by proving you’re right when I have a problem?  Yet so many do.

15 Minute Lawyer Meets Uncle Fred

The only thing wrong with communism is that human nature got in the way.  It’s not that Marx and Hegel didn’t have a good idea, but that they assumed something about people that was unjustified.  They assumed that people would be kind enough to each other to go with it.  History proved them wrong.

John Kindley, a young lawyer with some very strong libertarian political beliefs, took to the soapbox to challenge my assertion that many of the problems we face in the legal profession are due to a surplus of lawyers.  His solution was to eliminate the barriers to entry.


The solution, contra Greenfield, is not to raise the barriers to entry, but to lower them drastically, by eliminating the artificial costs of becoming a lawyer and the artificial attractiveness and expectations of the legal profession associated with those costs.

Why are so many attracted to the law, leading to our society’s production of so many (some would say too many) lawyers? A major reason is that the lawyer still has a privileged and vaunted status in society, akin to that of doctors, while the 3 year law degree is far more do-able for more people than the education required to become a doctor. What if that vaunted status conferred by merely becoming a lawyer was eliminated by eliminating the current barriers to entry?

I’m also of the mind that law should be the province of the people and not of the profession. It’s a real problem when somebody without a lot of money is, for example, going through a divorce and needs representation. He or she should be able to afford such representation, but in our current system such representation can be almost or actually out of financial reach. That would be less the case if the barriers to the profession were reduced or eliminated.

Though quite bright, brevity is not John’s strength.  His full explanation takes a while to read, and somewhat longer to digest.  But is he on to something?

Amongst the assumptions that John indulges is, as “already established on [Simple Justice] that law school does almost nothing to prepare law students for the actual practice of law anyway.”  This is correct as to the practice of law, but needs to be distinguished from the understanding of law and the ability to think like a lawyer.  While law school fails miserably to teach a person how to practice, it does an adequate job of teaching students about the concepts of law.  It may not be sufficient, but it’s nothing to be sneezed at.

Adding to the mix, Jeff Gamso adds in a comment :



Say you have a legal problem. You want to sue someone or you’ve been sued or you’ve been charged with a crime. You can represent yourself or you can hire a lawyer or maybe get a public defender or court appointed counsel. But what if you’re smart enough to know better than to represent yourself but don’t want to spend (or don’t have) the money to hire a lawyer and (if it’s criminal) don’t like/trust the lawyer provided for you at government expense? You have no alternative. Why should that be?

If you look around and find yourself in that position and find yourself concluding that the smartest guy you know is your Uncle Fred, and if he’s willing, why can’t he represent you? You can represent yourself for godssake. Why can’t you choose a non-lawyer proxy?

Why not Uncle Fred?  The argument to eliminate the barriers to the practice of law thus comes from two separate directions, that it would put an end to the status of lawyers, thus ridding the profession of those who engage solely for the purpose of accumulating wealth and social prominence (as if).  By weeding out those who have no business being lawyers in the first place as well as the costs that drive lawyers to do foolish things, the problems caused by the surplus of lawyers will go away. 

From the other side, we empower people to avoid the high cost of legal services, and put the choice back into their hands by allowing them to be represented by Uncle Fred (or Aunt Matilda for those inclined to see sexism under every rock).  It’s their life, so why not let them make their own choices about who will speak for them? 

Worthy of consideration at this juncture are calls that laws should be comprehensible by regular people, such that neither lawyers, nor a legal education, should be necessary to have a full understanding of what laws mean.  While this point is somewhat different, in that laws are intended to guide and control the conduct of people, and it seems rather pointless to enact laws which fail to serve their purpose directly, the flipside is that too often no writing will be understood the same way by different people, and no writing is so absolutely clear and comprehensive as to cover every situation that people can devise.

Some very interesting ideas for radical change to the legal profession.  Certainly more rebellious than the dream of teaching SEO marketing to lawyers.  And fundamentally flawed.

We are all in agreement about the problems facing the legal profession, running the gamut of greed and deception to incompetence.  This is why we have this conversation.  But one approach seeks to elevate the profession’s quality and integrity, while the other would reduce it to the lowest common denominator.  The result of the latter would be disaster.

Kindley belief is that by removal of barriers to entry, only the best would survive and thrive.  Those who are now entering the law for the wrong reasons, status and money, would either lose their incentive and be relieved of their disincentive to move to another job, since they wouldn’t be burdened with enormous law school debt.  His points are well taken, but don’t prove the libertarian Utopian position that meritocracy would reign supreme. 

We have every bit as much of an opportunity for the best lawyers to be the ones with all the clients, with those lawyers lacking in skills being forced out of the profession for lack of business.  This, of course, isn’t the case because clients don’t select lawyers based on merit.  They are rarely capable of distinguishing the good lawyer from the bad, or even the mediocre, since they can’t ascertain strong skills from weak.  A nice smile, empathetic words and firm handshake can be offered by the worst lawyer as well as the best.

Rather, we see that getting business has less to do with competence than with marketing, availability and price, the very things that detract from the quality and integrity of the profession.  Eliminate the barriers and we will end up being an occupation of glad-handers, long on warm and fuzzy and short on substance.  No one will be the wiser.

From the more practical perspective, imagine trials conducted by Uncle Fred. Now Nephew Billy thinks very highly of Uncle Fred and finds him to be the smartest guy he knows. The significance of this assessment can only be determined based on who Billy knows.  If Billy hangs out with the wrong crowd, then Uncle Fred’s intelligence might be over-rated. 

Let’s assume, for the sake of argument, that Billy is an innocent man arrested for a heinous crime.  Uncle Fred defends.  Fred has no idea about rules, or evidence, or voir dire, or cross-examination.  He does his best, but falls short.  Billy gets convicted and sentenced to death.  Is society okay with putting Billy to death because Uncle Fred wasn’t up to the task?  After all, Billy picked him to be his defender, and we respect Billy’s choice.

In a more mundane example, what about Uncle Fred preparing Billy’s Will.  Uncle Fred’s ability to write with clarity is far better than Billy’s, but not quite up to the level of Legal Rebel, Ken Adams.  Billy dies and no one is quite sure what the heck he wants done with the doublewide.  What then?  Perhaps Uncle Fred decided to make himself the primary beneficiary, not to mention executor, of Billy’s estate to the detriment of his 17 kids.  That’s not good.  Maybe Uncle Fred was never very good with commas, leaving the Will simply indecipherable. Do we rely on Uncle Fred’s post hoc explanation for what Billy intended?  Uncle Fred, by the way, is a heroin addict.

While these examples are somewhat silly, they reflect some of the many problems that dumbing down the law would present.  The problems would be vast, and as we realize that the law, based on its own application of entropy, would invariably become increasingly complex and convoluted, the absence of a group of people who are both educated in the law and qualified to engage in its practice would produce either anarchy or the demand for the recreation of the law as a profession.  We’re back where we started.

The challenge here isn’t to adhere to any dogmatic philosophy.  That John Kindley is a bit dogmatic is ably demonstrated by his aside that he is also in favor of tearing down barriers to entry to the medical profession.  To make my point on why this may not be the best idea, I hereby offer to perform a colonoscopy on John for a very reasonable price.

Rather, the challenge is to reverse our course, off the path of law being more business than profession, and instilling in its practitioners the desire to excel and conduct themselves with the utmost integrity.  To accomplish this, we need to address the surplus of lawyers competing with each other, sliding down the slippery slope of incompetence and disrepute with each new TV commercial, website, SEO marketing campaign and lie to potential clients about what they can guarantee, followed up by a warm smile and firm handshake. 

We are not good enough.  The solution is to be better.  Much better.

A Well-Conceived Scheme

Good scams are just good scams.  Do you think it’s accidental that the Nigerian lottery/inheritance scam has gone on for more than 30 years? I remember getting letters in the mail about it before there were faxes or computers. It sucked people in then. It still does today, even though one would think that everyone knows it’s just a scam.

So too with the elite drug cops in Chicago, where four members have pleaded guilty after cooperating against the brethren.  No, they didn’t cooperate because they suddenly remembered that they were cops, or decent human beings.  They did it to get a six month split sentence plus probation.  It’s all just about getting the best deal for themselves.

But the story that was told at the plea wasn’t a new one.  It was the same thing that happened in New York City’s Dirty 30 scandal in 1994.  And 15 years later, it’s still going strong.  After all, a good scam is a good scam.

The premise is simple: Steal from drug dealers and there’s no one to rat you out.  The victims are dirty, so no one will believe any complaints they might have about the cops taking cash and drugs.  And since they’re dirty, who cares about cops stealing from them.  Think of it as the redistribution of wealth from criminals to police officers, a little payback for their risking their lives every day to protect us and keep us safe.  No harm, no foul.

When the four former police officers admitted their roles in this scheme, a heavy sigh could be heard.



The Chicago police superintendent, Jody P. Weis, said he was pleased with the guilty pleas.

“We look forward to the conclusion of this case,” Mr. Weis said, “so the entire department can move forward from this unfortunate chapter in our history.”
That’s all it is, you see.  An “unfortunate chapter,” and now it’s over.  No need to look, people; just keep on walking.  One (4?, 9?) bad apple.  Isolated incident. Just keep walking.

I’m sure glad that this problem is fixed.  And now I can attend to the estate of my hitherto unknown deceased great uncle in Nigeria.

This (pointing) Is A Book (Update)

Walking around Christiane Amanpour’s apartment on Central Park West the other day, I found myself reading the titles of the books on her shelves.  She had a remarkable collection of books, interspersed with photographs of her and important people, ranging from presidents to the Dalai Lama.

From behind me, a woman muttered, “I wonder what this would look like with Kindle.”

Much can be learned about a person by looking at the books they keep.  There’s only one thing that can be learned about a person if all those books are replaced by Kindle.  They have no soul.

In the Atlanta Journal-Constitution, Mary Graber writes about the Slackoisie and books.

My students snicker when I tell them to smell books.

The ones who think I can’t tell that they have been surfing the Web instead of typing notes turn from their screens and look at me as if I had grown a third eye.

“Yes,” I say, “go to the library shelves. Pull out an old book and smell it.”

This is not something they can Google, as they often do when I present information outside of their comfort zones.

It’s not that Graber sees no place for Wikipedia in society, but that they have no respect for those old things called books.  They don’t give them easy answers at the touch of a button, bringing them right to the point without having to waste time wading through all that extraneous stuff like reasoning, explanation, history and understanding.

Today’s students think knowledge comes at the keyboard, from sites such as Wikipedia. I learned at a recent teaching workshop on Millennials that a common complaint seen on evaluations is “the teacher acted like she knew more than the students.”

Imagine that, teachers who think they know stuff that students don’t.  Outrageous!

But this trend parallels the loss of respect for books, which represent the shoulders of giants on whom we stand looking backward at the wisdom that came before us, to paraphrase Edmund Burke. The teacher, who has studied the books — solid and unchanged by random strokes of the keyboard — should offer a repository of wisdom. But current pedagogy encourages teachers to be “facilitators” who stand aside while children learn from peers in groups. Workshops on using digital media, and even cellphones, in the classroom add to the demise of the book — and to the demise of the idea of authority and lasting values.

That the Slackoisie, with their stunted grasp of reasoning and logic, and overextended valuation of their own qualities and competence, are confident that there is no question they will ever need to answer that can’t be found in a few seconds and a few keystrokes.  They are full of their prowess of technology, unaware of their inability to understand it.

Oscar Wilde called a cynic someone who knows the price of everything and the value of nothing.  The parallel is alarming.  And no doubt beyond the ken of the Slackoisie to appreciate.  After all, there’s no wikipedia entry for why the Slackoisie don’t get it.

So next time a millennial has a desire to put something up their nose, he should consider going to a library and smelling a book.  It’s one of those old, dusty things on the shelves that contains not only the specific fact you’re looking for but all the understanding it takes to appreciate the significance of the fact.  But do it quickly, as it may not be there for long.

H/T Stephanie at Idealawg

Update:  Greg Lambert fires back: Your books smell like elderberries.  Of course, they are no longer books, but “information resources.”  Greg’s post has a great video of Don Tapscott rationalizing the corruption of the Slackoisie and terrific comments.

The Walmart Lode

When Turley wrote about Walmart being at the core of yet another call to the cops to protect society from parents photographing their children in the bath tub, he noted that Walmart is a never ending source of incredibly stupid acts.



What makes this lawsuit so interesting is the inclusion of Walmart as a party. I am not sure what this blog would do without Walmart. When Walmart is not destroying Civil War historical areas, it is supplying blogs with a steady supply of abusive corporate conduct here and here and here), crimes committed by employees (here and here and here), or crimes by customers (here and here and here and here and here).
It’s one thing that someone at Walmart, renown for its film developing, joined the cadre of those on the lookout for those sex offenders formerly called normal parents (or grandparents), but there’s no apparent end to the wrongs that Walmart is integral in righting.  Why is that?

Some might say that it has much to do with the sensibilities of your typical Walmart employee.  Neither pretentious nor flashy, these are the salt of the earth.  Regular folk with solid American values.  Hard working, moral and filled with common sense. Just like the patrons of Walmart, thrifty and unwilling to throw their hard-earned money away on frivolities.

There are a million voices on the internets and elsewhere lauding these regular folk and their values.  They cry, “what happened to common sense?”  Guess what?  This is common sense. Just not your common sense, but it’s about as common as it gets. 

There’s a pretense we all hold that we are the norm, that whatever thoughts flow through our heads are the ones shared by ordinary, rational people of good will and intention.  We believe in our own thoughts, and we believe that most people, the normal ones, share them.  We are deluding ourselves.

As rational as we wish to believe ourselves to be, the same is true of most everyone else.  Except we all disagree.  Every single one of us.  We may share a few thoughts, overlap from time to time, but we also harbor thoughts that others believe to be absurdly wrong.  Maybe even dangerous.  Except we don’t know it and refuse to acknowledge it.

Walmart is likely an excellent microcosm of America, and that’s why Walmart employees, Walmart management and Walmart shoppers provide this seemingly endless stream of stupid acts.  We are all Walmart greeters, no matter how much we think otherwise. 

Common sense is alive and well. And it’s on sale at Walmart.

Rebel Rebel, Your Face Is A Mess

When the ABA Journal announced it’s Legal Rebels project, snickers could be heard in law offices across the land.  ABA and Rebel were not the sort of words one would expect to find in the same sentence.  But ABA Journal editor Ed Adams twitted, “Get used to it!” Tough words to live up to.

They began with a Legal Rebels Manifesto, which according to its preface. The ABA Journal’s “community of readers edited the document more than 65 times,” making their rebel manifesto subject to popular approval, and produced this:



I am a proud member of America’s essential profession. Without lawyers and the rule of law, a free, fair and open society is not sustainable.

I recognize that the legal profession’s traditions – the world’s most respected legal education system, most successful law firms and fairest court system – were once radical innovations.

In this time of economic crisis, I am committed to improving those institutions and creating innovation in the practice of law. I will question and, when appropriate, change the status quo. And I will use technology to serve my clients and society.

I’ll help remake the profession I hold dear so it can continue to deliver on America’s promise.

I’m an innovator. A maverick. A pathfinder.

I am a Legal Rebel.
Earthshattering, right?  Okay, maybe not, but motivational?  At least if you think that using technology is rebellious in some tacit way.  They apparently removed the part that read, “I will no longer wear wingtip brogues, but will replace them with flip-flops.”  Now that was too rebellious, and there was no sense pissing off the wingtip contingent.

The problem here is that it’s really cool to name people innovator, maverick, pathfinder, Rebel.  Maybe not maverick, or its common permutation, mavericky to describe the sort of stuff mavericks do, but some slick Republicans slipped that one past Ed Adams.  But using words, even cool ones, requires some sort of appreciation of their meaning.  Let’s go with “a person who resists any authority, control, or tradition,” since no one expects Legal Rebels to seek the overthrow of the government.

And so the ABA Journal named its Legal Rebels and offered their profiles.  It then went on an east coast Rebels tour, there apparently being no Rebels worthy of meeting anywhere else.  Unlike most of you, I’ve actually taken the time to look at the ABA Journal’s Legal Rebels.  With a very few exceptions, I’m afraid that the ABA Journal wouldn’t know a Rebel if it bit them in the butt.

The list contains some good lawyers.  It contains some great lawyer, in fact.  But Rebels?  Not so much.  It’s more along the lines of a 50 year olds idea of what constitutes well-dressed people.  Oh my God, she’s wearing white after Labor Day.  What a Rebel!  Some are engaged in relatively commonplace computer use, and others are trying to promote their quasi-law businesses in the age of social media as the next great frontier.  Much of it might have been cutting edge a decade ago, and perhaps the ABA Journal just figured out that wingtips aren’t as fashionable as they once were, but it’s now just monumentally ordinary.

No one can blame the “Rebels” for enjoying the ABA Journal’s free promotional opportunity.  After all, it’s good for their profile and can’t hurt business.  For most of the “Rebels”, it’s all just business, and anything that helps is welcome, no matter how silly the basis for their promotion.

Rather, this Legal Rebel project reflects on the relevancy of the ABA Journal.  It’s unclear whether they even realize what some of their choices are up to, or that they’re busy promoting banal business interests while calling them Rebels.  What is clear is that there are Legal Rebels out there, who are challenging the common wisdom of the legal profession, but their names are nowhere to be found on the list.  That’s because real Rebels are often calling for unpleasant things that shake up and disturb the readership.  The ABA Journal certainly doesn’t want to drive away its readership by calling attention to things that would miff the wingtip crowd. 

And don’t ask me to name the true Legal Rebels.  You already know who they are, and I’m not competing with the ABA Journal for eyeballs.  Besides, real Rebels don’t do it to get their name on a list, unless it’s the Nixon’s enemies list. Few things would be as embarrassing to a real rebel as being called a Legal Rebel by the journal of the most establishment organization in town.

That the Legal Rebels project turned out to be just further evidence of how unrebellious lawyers, and the ABA Journal, truly are comes as no surprise.  You didn’t really think that the ABA Journal was getting behind anything radical, did you?  After all, it’s always possible that wingtips will come back into style.  And when they do, Ed Adams will be right on top of it.

NOW Pressures Judge To Convict, Before Trial

Queens State Senator Hiram Monserrate has only two claims to fame.  First, he was one of the defecting Democrats who was responsible for shutting down the New York State Senate during the month of lunacy.  Second, only a month after the then-City Councilman was elected to the Senate, he slashed his girlfriend’s face.  Need I mention he was a New York City cop for 12 years before deciding to become a public servant?

Having decided that he would do better with Justice William Erlbaum than 12 peers, the latter being unlikely to ignore the videotape of him punching, grabbing and slashing Karla Giraldo to the tune of 20 stitches in his accident defense, Monserrate decided to go non-jury.  He’s represented by my buddy Joe Tacopina, who has had great success defending cops.  Of course, Joe Tac’s best work is before a jury, where his charm and good looks do him no harm.

Inexplicably, this was too much for the National Association of Women to take.  Given Monserrate’s elevated profile from his Albany debacle, combined with his unkind treatment of his girlfriend Karla, whose story of assault later changed to an accident as Monserrate was bringing her a glass of water, he became the latest poster boy for misogynistic politician.  So a plan was hatched.


The National Organization for Women in New York State is calling on the judge trying State Senator Hiram Monserrate on domestic violence charges to give him “the maximum sentence allowable by law.”

There’s only one problem.  Monserrate hasn’t been convicted yet.  Details.  But NOW is nothing if not well organized when it comes to applying pressure.



“Call or write the Honorable William M. Erlbaum,” the women’s organization told supporters in e-mail messages this week. “Send a message that violence against women must be stopped and perpetrators must be brought to justice.”

It included a template for sending a message to Justice Erlbaum that concluded: “I implore you to do the right thing by punishing Senator Monserrate, giving him the maximum sentence allowable by law. By doing so, you will be sending a very important message and that is that violence against women is a serious crime.”

Not surprising, Tac doesn’t think this is a very good plan as he prepared for trial.


“They’re trying to improperly persuade the fact finder,” Mr. Tacopina said in an interview. “It’s akin to writing a letter to a juror.”

Nuh uh, says NOW.



Marcia Pappas, the president of the women’s organization in New York State, acknowledged the campaign to influence Justice Erlbaum, saying in an interview, “We’re imploring him to do the right thing.”

She said the campaign was nothing unusual for what she called “an activist organization” that has often written to family court judges in child custody cases.

“I’m sure the judge knows what he needs to do, so his position is not compromised,” Ms. Pappas said.
Of course, if the judge already knows what to do, then why bother him with letters?  What makes this scenario interesting is that the judge is the factfinder in a non-jury trial, yet fair game to public pressure.  And Pappas’ statement notwithstanding, obviously the purpose of the campaign is to let the judge know that they will hang him out to dry if he makes the wrong call.  At least they will try.

Tacopina is correct in comparing this push to punish to improperly reaching out to a juror in one sense, but a judge isn’t a juror, and there is no law I can think of prohibiting NOW from trying to influence his decision.  On the other hand, Justice Erlbaum isn’t likely to shudder in fear at the thought of a bunch of letters from NOW members demanding the maximum punishment.  It’s likely that he will remember the sequence of events, first guilt and only afterward punishment, in any event.

It would not surprise me if this NOW campaign backfires bigtime.  Curiously, Monserrate has a tough case against him, with videotape of the assault to confront and only his girlfriend’s changed testimony to back up his story.  Given that it’s fairly clear that her story changed to exculpate him, coupled with the tape, getting the judge to bite won’t be easy.

But there’s a tendency to get both annoyed at such overt political efforts to influence the outcome, and to bend the opposite way in order to avoid the impression that such efforts work (and thereby provide an incentive to the next group inclined to exert pressure) that may give Monserrate an edge where before he had none.  While NOW may be impressed with its power and influence, it’s unlikely that Justice Erlbaum will share its self-image.

Ultimately, I suspect that the judge will do the right thing, meaning that he’ll try the case fairly and this background noise will fade away.  But it’s amazing how this misbegotten scheme is the first, and possibly only, thing that has made Monserrate look even a little bit sympathetic.  Before he was a pompous, arrogant State Senator who beat up and slashed his girlfriend.  Now he’s the lone man fighting the hordes of NOW who are trying to improperly influence justice and deny him a fair trial. 

If Monserrate has any gentility in him at all, he’ll send Pappas a thank you note. It would be the right thing to do.

CLE Gone Wrong

To the extent that feral lawyers have any pretense at organization, bar associations are meant to serve that function.  But as this post at Above the Law shows, even the New York State Bar Association listserv has turned into another forum for nastiness and self-loathing in the current economic atmosphere, where a relatively new, still unemployed, Fordham law grad reached out in an effort to find a job.  His attempt was met with ridicule.

This reflects a problem.  Not just a problem with young unemployed lawyers, but with older lawyers who have their own problems with business, enough so that they can’t find the grace to be kind if not helpful.  It bears the stink of desperation that’s spreading through the profession.

Our bar associations and law schools can smell the aroma as well, and are trying to do something about it, or perhaps capitalize on it as the case may be, by running Continuing Legal Educations programs on the critical legal topic of, ta da, social media.  Stop laughing.  I’m serious.

The idea of continuing legal education was born of the notion that too many lawyers would allow their knowledge and skills to languish after passing the bar, leaving them substantively lacking while imbued with the monopolistic right to hold themselves out as qualified to represent others in the law.  CLE was made mandatory, since lawyers couldn’t be trusted to keep abreast of developments in the law on their own.  Schools and associations, not to mention a cottage industry of private fee-based providers, were authorized to provide CLE.  All to make lawyers more competent.  Really?

There has been a rash of CLEs on the topic of blogging and social media.  What the heck does this have to do with better representing clients?  While it’s fine for lawyers, traditionally about 12 steps behind the rest of society in its acceptance and adoption of technology, to want to learn what all the hoopla is about, but in satisfaction of their mandated CLE requirements?  Spare me.  Not only is this a flagrant bastardization of the concept of CLE, but it further promotes the facile belief that law is all about snagging business rather than serving clients. 


“But Greenfield (you moron, optional), without business we starve, and that doesn’t help anyone (especially us).”
Fair enough, but that doesn’t mean that it becomes fair game for continuing legal education.  If you want to attend conferences on how not to starve, as opposed to how to get a life, by all means do so.  But don’t expect CLE credit for it.  These conferences aren’t for the benefit of clients, but for the benefit of lawyers.  No one said you couldn’t take whatever courses you wanted, but that you can’t substitute continuing legal education for continuing marketing education.  No, they are not equivalents.

But the problem gets worse.  A while back, I was astounded by an NYSBA blogging CLE where the speakers never blogged.  It was followed up by another seminar with someone who “blogged”, assuming that one considers blatant self-promotion, as in “if you’re arrested, I will win your case,” blogging.  Mind you, the blogger was quite impressed with himself and his blogging skills.

Since then, the drizzle has become a deluge.  There appears to be no end to the number of programs, and the ready availability of people holding themselves out as experts to speak at these programs.  Just yesterday, a new one appeared in my emailbox, with speakers characterized as “social media practitioner” (huh?) and “twitter expert.”  Where does one take the test to become a twitter expert?

Aside: At a cocktail party yesterday evening, I met a person who is writing novel about twitter. They didn’t grasp the irony at all.

I can’t blame the people who have gotten themselves gigs as speakers at these CLEs.  After all, they get CLE credit for doing it, and are promoting something they are engage in and enjoy.  Some have a great deal of knowledge on the subject, though others don’t appear to have any reason for being on the panel whatsoever.  And some have a big horse in the race, their financial interests being acutely connected to persuading lawyers to hop on board their wagon.  Everyone appears to be a great lover of technology and supporter of social media as the newest, greatest thing ever.  This is a “do it or die” conference, and the fact that a few stand to cash in on the “do it” part doesn’t seem to matter.

One more thing happened yesterday (yes, it was a busy day) that drove the problem home.  I, along with a few other malcontents, was asked to be on a social media panel at a conference on the upper left coast.  They wouldn’t pay for travel.  They wouldn’t pay for room or board.  But I could attend the balance of the conference without paying the fee.  This was sheer madness. It’s one thing to ask me to sacrifice my time, but to expect me to pay for the privilege is insane.  And attending a conference that falls ten steps below sticking a needle in my eye is not much of an incentive.

And then it dawned on me.  The reason the only sounds heard at social media CLEs are the dulcet tones of sycophants is that the others would never pay to play.  There’s nothing in it to justify traveling around as apostles of social media.  Only those who see profit in the activity would be bothered, and willing to suffer the cost.

In the process, bar associations and law schools are putting their imprimatur on lawyer marketing when their CLE mandate is to improve the skills and qualifications of lawyers so that they can better serve their clients.  If the good lawyers on the NYSBA listserv wanted to do the unemployed Fordham law grad a solid, they could saved the snark and just replied with one word.  Plastics.

Putting The Profit Into Crime

For anyone who truly admires outside the box thinking, you’re about to become a big fan of Las Vegas casinos. It’s well known that casinos, unlike other businesses, take crime within their very flashy walls serious, so much so that they maintain quite elaborate security forces and their own private jails, where people can theoretically be held until the gendarmes come to fetch them.

If this seems troubling, it beats the old system, gently referred to as the broken knee approach.  But as anyone who has ever put chip to felt should know, the rule of casinos is that the odds favor the house.  With a captive audience, it would just be wasteful to pass up an opportunity like this.  Enter United States Justice Associates.

From KTNV Contact 13 in Vegas, 



The video begins with ominous music and grainy jail images… inmates in CCDC uniforms and handcuffs shuffling out a courtroom door to return to their cells.

“At the end of this video, you will be required to make a decision that could affect you for the rest of your life,” the male narrator says in a serious tone.

“Hello, I’m speaking to you on behalf of United States Justice Associates. You have been detained by this establishment because of your involvement in a crime,” the narrator says.

The video spells out a program where people detained by casinos can beat the rap merely by signing a confession and paying $500.  No prosecution, no trial, no record.  The $500 fines are split between the casino and USDA, and, according to report, the “reward” to casinos may be as much as $730,000 per year.

The program is the brainchild of Stephen Brox, who, much to his misfortune, didn’t find the same program available to him when he was arrested earlier in the week on sexual assault charges.  The Las Vegas Metro Police are now looking into this program, investigating coerced confessions and extortion.  Oddly, Brox wasn’t talking.  But his attorney was.



“This program was designed, it is my understanding, to avoid arrests, avoid clogging up our already over-clogged justice system and to address relatively minor offenders with appropriate counseling,” [Brox’s attorney, Robert] Draskovich says.


“It appears that a flat fee was chosen, which is not illegal, and it appears the casino did receive a part of the fee. The person deciding to go into the program had the ultimate choice whether he or she wanted to participate in the program,” says Draskovich.


And the video they watch while contemplating that decision in a casino holding cell tells them, “It’s important to make payment arrangements immediately. Otherwise your case and admission of guilt will be forwarded for prosecution, resulting in a conviction and jail time.”

Not only does it provide a new revenue stream for the casinos, but it keeps the court dockets lower. A win-win, if ever there was one.  But some might wonder, given that these are casinos and accordingly subject to some scrutiny because of an alleged unsavory past, what would make them think that this scheme was a great idea.  No problem.



When the program was pitched to a group of casino security chiefs it came with a letter obtained exclusively by Contact 13. It’s signed by then-Chief Justice Court Judge Douglas Smith, who’s writing it on behalf of United States Justice Associates. It carries his personal recommendation of their program, “wholeheartedly, and without reservation.”

Judge Smith has been questioned by police and did not return our calls for comment.

We’ve also learned the program was pitched by Sheriff-turned Station Casinos security boss Bill Young.
Shockingly, Chief Judge Smith received a $500 donation to his election campaign from USJA.  No, it’s not shocking that they made the donation, but that Smith sold out for a mere $500.  He could have done a whole lot better. 

What happens in Vegas stays in Vegas.

H/T Packratt

Poor Allen Stanford

Dick DeGuerin did a lot right when he began his representation of billionaire R. Allen Stanford.  He also did one thing really wrong.  He forgot to get paid.  As nice as it is to be a billionaire, it doesn’t help much when your assets are seized pending forfeiture.  Now Dick DeGuerin has to withdraw from the case, having come to the conclusion that he bears little resemblance to Mother Teresa.


As DeGuerin left the courtroom, he wished his former client good luck.

The relationship between the famed criminal defense lawyer and his client, the former cricket king and high-flying world traveler, included DeGuerin trying to turn Stanford over to authorities before he was charged to show he was not hiding.

It also included a scuffle in DeGuerin’s office with a local civil lawyer who wanted a role in Stanford’s defense.

When the client is a billionaire, everybody wants a piece of the pie.  But nobody knows you when you’re down and out.  In fairness, chances are pretty good that any funds Stanford would have used to pay DeGuerin would have been seized by the government anyway.  That will comes as a surprise to many, that even attorneys fees aren’t safe, but they are as much subject to forfeiture as any other funds.

The problem arises from the confluence of two rules, both lousy.  First is the unconscionably low threshold for forfeiture, mere probable cause.  Any half-baked, concocted story will do, and it’s hardly a stretch to take an indicted defendant and fashion a reason to call his money dirty. 

The second rule is that forfeiture is an “in rem” proceeding, meaning that it operates as a legal fiction, that the “res‘, the ‘thing”, offends the sovereign.  Why does this matter?  Because things don’t have rights.  People have rights.  Things just sit there, naked in their rightlessness. Not only does this disconnect the “res” from the person from whom it was seized, but it eliminates issues surrounding the lawfulness of its seizure. 

There is one additional bit of ugliness that goes along with the legal fiction of an “in rem” proceeding.  Anyone claiming superior title to the thing, like the person from whom it was seized, is placed in the position of claiming it, and thus subjecting himself to all manner of civil disclosure.  If the claimant also happens to be a criminal defendant, which ironically is often the case, it’s like a prosecutorial colonoscopy.  As much as one would prefer to avoid such an intrusion generally, it’s particularly undesirable when you’re under indictment.

The upshot of this process is to turn our modern day trials into a reasonable facsimile of the old witch trials.  You remember them, where proof of guilt was that the witch floated and didn’t drown, such that she deserved to be burned at the stake.  The procedure is to first remove a defendant’s ability to financially mount a defense, based on the presumption that his money is dirty, convict him justifying its initial seizure and then exclaim, “see, I told you he was guilty and that the money was dirty.”

So now the billionaire will be represented by a federal defender.  Not that there’s anything wrong with that.   As Mike explains,


The Federal Defenders are usually very good.  Most public defenders are good lawyers.  They are simply too overworked to do a good job on any given case.  One person said it best: “If I had my choice, I would want to be represented by my public defender’s office.  However, I’d want to be their only client.”  One-hundred open criminal case files would turn any lawyer into mush.
It’s pretty likely that the federal defenders would be just as happy to not have this case to deal with.  It’s just another burden on an already burdened, and underfunded, bunch of lawyers who really didn’t figure that their efforts would be put to defending billionaires.  Billionaires, by the way, can be very demanding.  Federal defenders really aren’t geared up to handle very demanding billionaires, and whatever time is dedicated to the defense of R. Allen Stanford comes at the expense of time that would otherwise be available to the truly indigent, who will become the silent victims of this shift of fortune.

All in all, it’s been a good day for the government.