Monthly Archives: September 2009

Quality Matters; It Just May Not Be Enough

Edward Wiest sent me a twit asking, What will @ScottGreenfield think, about this post by Jay Fleischman at Legal Practice Pro, a blog about “marketing, managing and growing a profitable law firm.”  I’m glad Ed did, because the chances of my ever seeing this post otherwise are slim to none.  Maybe even less.

Jay’s post, entitled You’re A Good Lawyer – Big Deal, might at first blush seem the polar opposite of my anti-marketing philosophy, where I harangue the forces of evil who promote lawyers marketing themselves as “experts”, or “aggressive, caring, blue,” or “former prosecutor,” or whatever magic words some marketer urges upon the business-less lawyer seeking enough lucre to buy a loaf of bread on his way home.  I’m constantly harping on competence and quality.  Here’s what Jay has to say about it:


There is nothing more annoying that a lawyer who says, “I don’t understand why I don’t get a lot of business.  I’m a really good lawyer.”

Big deal.  Lawyering ain’t rocket science, and don’t let anyone tell you otherwise.  If they do, move away from them as fast as you can.

And this is coming from a lawyer, someone who’s been plugging away for quite some time at it.

We are technicians, schooled in a profession that is part mechanics, part art.  The old saw is that they call it  the “practice of law” because you never get perfect at it.  True words indeed.

Ask any lawyer who’s been practicing in a particular niche for more than a decade and they’ll confirm (if they’re being honest, that is) that the basics remain the same and all that changes is nuance after awhile.  Sure, laws change and precedent evolves – but the basics stay the same.  Nail those and you’re halfway there.  Probably more.

To be fair, Jay’s a bankruptcy lawyer, and his words about what it takes to be a “good lawyer” strike closer to home in his niche than mine.  Or perhaps we just have different ideas about what it takes to be a good lawyer, though I agree that it isn’t rocket science.  For the purpose of further discussion, let’s assume that Jay’s whining lawyer’s self-assessment, that he is in fact a “good lawyer,” is accurate.  What then?


Here’s the ugly truth – no matter how busy you are, no matter how quiet your phones are, no matter how full or empty your waiting room is … that’s entirely up to you.  Nobody else.  Your hand makes the moves on the chess board that results in someone saying, “Hey, that looks like a good lawyer to hire.”  Your efforts constitute the grease that makes the wheels turn.

He’s right.  It’s not enough to simply be good at what you do.  Sitting alone in your silent office, relishing in your quality, doesn’t make for much of a practice.  If you’re the only person who knows that you’re good, then you’re going to be a very lonely lawyer, and your family will be hungry.

But Jay’s position, at least in this post, begins from the premise that you are, in fact, a good lawyer.  This is a critical distinction between Jay’s follow-up suggestions and those of the other marketers, and the “anyone can go solo no matter how incompetent you are” crowd.  First, be a good lawyer.  There is no legitimate way around this first hurdle.  None.

Jay makes some curious observations about referrals, the primary source of clientèle for good lawyers.



But when it comes down to brass tacks (I have no idea where that saying comes from, but I like it) the reality is that people make a decision based on the way the lawyer markets his or her practice.  Word of mouth, advertising, web searches, bar referral programs … whatever road leads “Joe Legal Problem” to the lawyer is definitely NOT in any way related to that lawyer’s overall qualifications.

The only thing that comes close is word of mouth, but only in the form of a referral from a friend or family member who used the lawyer and got a good result in the past.  But even then, the referring client may have gotten a terrible lawyer and a dead-simple case.  Not to trash talk anyone, but sometimes a case is so easy a college kid could bumble his or her way through it.
While he’s right about bad lawyers obtaining the occasional good result, that’s the tail wagging the dog.  More likely, a good lawyer obtained a good result, or at least the best result possible.  It’s generally a good idea not to let oddities cloud one’s vision, even though they do occur.  On the other hand, a website replete with unwarranted puffery about a lawyer doesn’t seem to have much to commend it over word of mouth referrals based on good results, so is it better to get clients based on some modicum of reality or to pursue riches based on a total sham?  The answer to this question tells a lot about a person.

Jay finishes off his post with 8 suggestions of things to do to bring clients into your very quiet office.  Aside from his second suggestion, which implicates some ethical considerations that would apply to New York lawyers, they are pretty basic and pretty good.  Given my admiration for Seth Godin, and my enjoyment of Harold Robbins, there’s some great reading in there.

Of particular note is letting the clients you do have know that if they are pleased with the representation you’ve provided, you would appreciate their letting others know, since client referrals are the best source of business.  This isn’t easy for many lawyers to do, as it feels somewhat slimy and demeaning.  And if clients are happy with you, won’t they refer people to you anyway?  Maybe, but many don’t want to think much about lawyers when they don’t have to, and often merely pointing out the obvious means the difference between them speaking your name some day in the future and standing mute.

But before I end, let’s return to the initial assumption, that the lawyer complaining about his lack of business was, per his self-assessment, a good lawyer.  Says who?  If your phone isn’t ringing, perhaps no one shares your self-assessment?  If you’ve come to this conclusion in the absence of actually providing any competent representation of clients, consider the possibility that you aren’t yet a good lawyer.  Maybe you will be, eventually, but believing in yourself is not a substitute for competency, no matter what anyone else tries to sell you.

The first step is always competence.  Without it, the best you can hope for is to live a lie.

What I Owe You

Having established Simple Justice some time ago, I regularly receive requests from folks.  All sorts of requests. From the constant link exchange emails, as marketers tell their clients to seek, to guest posts, to advice on all manner of blawging issues.  And then there are the new lawyers seeking to break into practice, or break into criminal defense, or just not break anything. 

From there we have the defendants, who are empowered by the ubiquitous lawyer websites to ask questions of lawyers who do not represent them.  Free questions. Free answers.  The business model of many of our finely conceived lawyer-finder type websites all involve entitling people to expect answers to their questions upon demand. The websites sell advertising off views by people seeking free legal advice.  Lawyers are expected to provide the fodder to draw the eyeballs, while the website makes money off their backs.  And lawyers appear all too happy to be stupid.

I quietly ask myself, from time to time, if I’m the only person who thinks this is lunacy.  When I tell a unknown caller, who merely wants to tell me their story for a half hour or so and obtain some free advice that will change his life, that I cannot do so, I hear him curse me out for being a horrible human being; a greedy lawyer.  Do other people find this acceptable?

No, thank goodness, I am not alone.

From Mike at Crime & Federalism and Walter Olson on twitter, I have found a brother.  Better still, someone as curmudgeonly as me who is willing to spell it out, tell it like it is, take no prisoners.  Meet John Scalzi.  He’s a writer, which means he can do so better than me, but if I was a writer rather than a lawyer, then I would write what he does.

I would love to copy and paste his whole post in here.  True, the application to law isn’t precise, and requires a bit of squinting at times given our different functions, but there isn’t a word in there that isn’t worth reading.  I won’t, however, because they are his words, not mine.  But I will take a bit, fair use and all, to whet your whistle.


The person who determines what a writer should do for others is the writer, not you. Why? Well, quite obviously, because it’s not your life, and you don’t get a say. And if you’re somehow under the impression that well, yeah, actually you do have a say in that writer’s life, take the following quiz:

 


Think of your favorite writer. Now, are you:
1. That writer?
2. That writer’s spouse (or spousal equivalent)?
3. Rather below that, a member of that writer’s immediate family?
4. Rather below that, the writer’s editor or boss?


If the answer is “no” to the above, then guess what? You don’t get a vote. And if you still assume you do, that writer is perfectly justified in being dreadfully rude to you. I certainly would be. I certainly have been, when someone has made such assertions or assumptions. And if necessary, I will be happy to be so again.


It’s as if I’ve found my long lost brother.  When I wrote something similar, the Slackoisie were all over me like flies on feces.  They didn’t get it then, and likely won’t get it now.  They are, you see, entitled.  They are the people Scalzi is writing about, the ones who think they have a right to demand that others perform for their convenience, serve their interests, wait on them.  Like their mommies did.  It’s all about them, and the rest of us exist only to make their lives easier.  Or else we’re mean to them.

I wish to take this opportunity to welcome John Scalzi into the Curmudgeon Club.  If he wants to be president, the job is his.  Now please read the rest of his post, and pretend that it came from me.

The Sound Exercise of Discretion

Too often, we learn of the wrongs, the bad choices by cops and prosecutors that make us wonder where their mothers went wrong.  Lest one get the wrong impression, not every exercise of prosecutorial discretion results in another shocking, mind-bogglingly stupid prosecution.  Sometimes, prosecutors use their authority to make sure the right thing is done, and when that happens, they deserve recognition and appreciation.

From the AP, prosecutors in Ravena, Ohio, joined with the defense in concluding that an autistic 18 year old was not competent to stand trial for the fatal beating of his mother, a professor at Kent State.



Prosecutors and defense attorneys told a judge Friday that an autistic teenager is not competent to stand trial in the fatal beating of his mother, a Kent State University professor.


The attorneys said they accepted a mental health evaluation of Sky Walker, 18, that concluded he is unable to help in his defense.


The prosecution would be satisfied if the judge orders Walker sent to a facility that ensures that “the public is protected from any further acts of violence or aggression,” said Chief Assistant Prosecutor Francis M. Ricciardi.


Less than two weeks after the mental evaluations were completed in March, Walker was moved from jail to a state-run center in Toledo. The center’s nine group homes serve about 160 people, most of whom have severe mental retardation.
How easy would it have been for prosecutors to argue that autism is no excuse for a terrible crime, and pursue this young man with the full weight of its power.  Like shooting fish in a barrel, another successful murder conviction was there for the taking.  And yet, they acted with restraint, with thoughtfulness and with recognition of the limits of culpability inherent in autism. 

The implications of both mental illness, traumatic brain injury and autistic spectrum disorders are vast for the criminal justice system, and largely underappreciated.  The decision by the Revena prosecutors to join with the defense in recognizing the impact of autism on Walker’s mental state demonstrates a remarkable concern for justice and the integrity of the criminal justice system.

Bravo.  Justice was served, and I hope that Sky Walker receives the care that he needs and will help him.

Think You Can Help? Then Let Soros Pay

This is hardly intended to open a discussion about whether you love or hate George Soros, so don’t go there.  Like him or not, he puts his money where his ideals are, and has established the Soros Justice Fellowships.


The Soros Justice Fellowships fund outstanding individuals to implement innovative projects that advance the Open Society Institute’s efforts to reform the U.S. criminal justice system. OSI’s strategy takes aim at two overarching ills: the over-reliance on incarceration and harsh punishment, and the lack of equal justice—especially for people of color and the poor.

The application period for fellowship is open, and will close on October 14th.  They are actively seeking applications, so don’t assume that the deal’s done and all the really important projects have the loot locked up.

As can be seen from the list of last year’s fellowship winners, the breadth of projects funded is quite broad, with some even on the sketchy side (in my opinion).  So many readers have done, are doing, and want to do projects that fall within the parameters of the Fellowships that it would be a terrible waste to ignore this opportunity.  The funding is there, and there’s no reason to believe that your ideas, your projects, aren’t as important and worthy as past fellowship winners.

And just to show how worthwhile these fellowships can be, Amy Bach, author of Ordinary Injustice, was a Soros Fellow in 2003, providing funding to allow her to write the book.  Not too shabby, eh?

Amongst last year’s winners, I noted that there was nothing to suggest recognition of the power of the blawgosphere to move the effort for justice forward, and that this was a major omission on their part.


I queried the good Soros people on the absence of blawgers, and was told that, since their goals include public awareness of criminal justice issues, they would “welcome” applications from blawgers.  “Applications”, I responded?  “Feral blawgers don’t ‘apply’ for things. It’s not in our nature to do anything so ‘official’.”  But that doesn’t prevent the Soros bankers from doing a quick spin around the blawgosphere to see the efforts being made here to enlighten the world as to the frightening reality of our criminal justice system.
As they’ve again asked for applications, rather than taken a test drive through the blawgosphere, I suspect they have yet to adopt my suggestion that blawgers aren’t the sort of folks who apply for things, but just do the very work they seek to further.  In other words, they won’t come looking for you, even though they should.  But that doesn’t mean you don’t deserve the support, or that they aren’t interested in our efforts, which will have (again, in my opinion) much farther reaching impact than many of the projects that they’ve support in the past.  I trust they won’t continue to ignore the most powerful tool out here for the cause of justice. 

So if you’ve got a project, go for it. The worst that can happen is you don’t get it. And I bet there’s a good chance, given some of the great work done by my friends around the blawgosphere (with no outside support whatsoever) that your efforts are worthy of a Soros Fellowship.  Go for it.

The Good Samaritan

In a series of posts over at The Agitator, Radley Balko chronicles the experience of his reader, Josh Wexler, with a New Orleans police officer, William Torres.  Wexler watched from his car as Torres ran a stop sign and then struck a pedestrian.


[Wexler] saw a New Orleans police officer run a stop sign and strike a pedestrian with his car in the French Quarter at 12:45 p.m. Jan. 29.

When the pedestrian raised his hands as if to say, “What are you doing?” the officer rushed out of his vehicle and “angrily” grabbed the startled man, Wexler said.

The officer in question, William Torres, reportedly forced the pedestrian to place his hands on the hood of his squad car and reached for his handcuffs as if to arrest him.

This is the natural sequence of events, ambulance optional.  Josh Wexler, being of the sort who would read Balko, chose not to close his eyes and run away, but rather intervene.


He got out of his vehicle and told the officer he saw him run the stop sign and hit the pedestrian. Wexler told Torres he had no right to arrest the man.

At this point, Torres reportedly allowed the pedestrian to go free, directed his attention to Wexler and asked, “Do you want a ticket?”

“A ticket for what?” Wexler said. “I didn’t do anything.”

“It’s a simple question. Yes or no. Do you want a ticket?” Torres reportedly responded.

This again is the natural sequence of events.  Radley’s readers overwhelming praised Wexler’s testicular fortitude.  I join them, though I wonder whether it would have been more effective to call his local news desk and take some video rather than test the good will of William Torres.  As my But For Video posts have sought to make clear, no cop does wrong if there’s no video.  We have yet to move to the place where the word of a citizen prevails in a pissing match with a cop.

The sequence of events is important, because it appears over and over again.  Challenge a police officer and he arrests you, thereby removing your credibility and reducing your complaint to a challenge of his cause for arrest.  It’s taught in cop school.  It’s so basic that even the dumbest cop around knows how to do it. Plus, it’s fun. At least for them.  As Jeff Gamso notes, did you think the cop was going to admit his fault?

Over at Popehat, Ken was reminded by Wexler’s effort of a news shows effort to find out what would happen if a regular person walked into a police station and asked how to complain about a cop. The dialogue is hysterical in its absurdity.  The reason it’s so funny is that we know that the “citizen” is an undercover news guy and that the encounter is being recorded.  If it was real, it wouldn’t be nearly as funny.

The real life follies between cops and citizens is the worst kept secret around. We all know about it.  We’ve all seen the videos.  And yet, it’s as if no one in a position to do anything about it is aware of it at all.  Ask and you’ll get this blank stare and the distinct impression that they are unfamiliar with the concept.  Ken, former prosecutor that he is, says:


You’re free to assume — as unqualified supporters of cop culture tend to — that these are outliers and extreme cases and incongruities and that in most cases cops are perfectly professional when you try to file a complaint. With that level of credulity, you’ll probably wind up as one of my clients.
Within the onion, however, there is recognition of the truth. as well as the need to deny that this is how things work.  If there was acknowledgment that the police have been playing this scam, institutionally, the belief is that it would undermine public trust and support of the police, which would undermine their ability to perform their function, which would render the nation unsafe.  As cops like to say, if you don’t like them, call a criminal the next time you need help.  Of course, that might in fact be good advice.

The truth isn’t that everyone in power doesn’t know this open secret, but that the rationale is false.  As the dirty little secret becomes increasingly undeniable, and it is by dint of videos, blawgs and the efforts of people like Josh Wexler, trust and confidence in the police is increasingly undermined and the tide will change.  When no one can plausibly deny the problem, there will be a shift that compels any credible person in power to confront it.  We may not be there yet, but it will come if we keep the pressure on.

Josh Wexler is a good Samaritan.  William Torres is a mutt.  Thankfully, the mutt didn’t just beat the good Samaritan to a pulp to shut him down. 

Cy Vance Is New York County’s New District Attorney

Not since 1975 has anyone even considered removing the name on the door.  Robert Morgenthau probably could have stayed in the big office until his last breath.  That’s respect. But having fulfilled his obligation to serve the public, and with Leslie Crocker Snyder nipping at his heels, it was time to pass the baton.  He chose Cy Vance, Jr.  So have the people of Manhattan.

With 44% of the vote, as against 30% for Snyder and 26% for Richard Aborn, Cy won the Democratic primary yesterday.  Since no Republican is running, that’s the ball game.  Cy Vance will be the District Attorney, the first new one that most New Yorkers will know in their lifetime.

Cy brings much to the office.  New ideas.  Respect for the City’s demographic make-up, coupled with a recognition that something is fundamentally wrong when 90% of the people stopped and frisked are black or Latino, particularly when only 10% of those stopped and frisked were subsequently arrested.  This doesn’t reflect a safety concern, unless one considers the safety of blacks and Latinos from the police.

Unlike others, Cy has seen life from both sides.  He was a criminal defense lawyer as well as a prosecutor, a point raised by his opponent, former judge Leslie Crocker Snyder, whose judicial career was marked by her harsh sentences and even harsher rhetoric.  That Leslie sought to smear him for doing his job as a defense lawyer tells much about her.  That Cy understood, appreciated and served his clients as a defense lawyer tells much about him. 

Basic to the mindset of every person who has stood beside an accused is an appreciation of the fact that our Constitution is something observed by the police and the courts primarily in the breach.  We know if to be so, and are ever vigilant to be its last defenders.  This can’t be explained to the line prosecutors, who are still too young and green to believe that the fine men and women of the NYPD aren’t always so fine, or always so honest.  But when the boss suggests that they scrutinize their cases, their witnesses, their claims, for impropriety and unfairness, and that the overwhelming assumption will no longer be that the cops are always right, always truthful, there is hope that integrity will flow from the top down.

What I found most persuasive about Cy’s representation that he remembered the lessons learned in the trenches was his proud announcement of his support from the Innocence Project’s Barry Scheck and Peter Neufeld.  Some DA candidates would conceal the endorsement of such people.  Few would court it, or want it.  No, it’s the PBA endorsement they seek, the backing of the cops, who in turn back those who back them.  Business as usual.

Cy embraced the endorsement of Barry and Peter.  That was the clincher.  Even more surprising, Cy welcomed my endorsement, as if it would make a big difference in the vote.  Given what I do for a living, most DA candidates would flee the praise of a criminal defense lawyer.  Cy didn’t.  When he said he was going to be DA for all the people of New York County, he meant it.  I was honored that he cared.

The margin of victory in a three person race, 14%, is huge.  It reflects the desire of the people of Manhattan to have a District Attorney who can not only be trusted to prosecute, but to know when not to prosecute.  It shows that respect for the Constitution, the rights of defendants and supervision of a huge police department that cannot be trusted to honor the Constitution on its own is alive in Manhattan.  New York County rejected the simplistic tough on crime rhetoric of the Leslie Crocker Snyders for the smart on crime and respect for human beings approach of Cy Vance. 

In her congratulatory twit last night, Dr. Sun Wolf wrote:


@CyVanceforDA Congratulations! Do justice, love mercy, walk quietly with your god.
Amen.  Congratulations, District Attorney Vance.

But What Do Biglaw Children Think?

At Above the Law, David Lat is trying out a new concept for his dedicated fans, almost all of whom are either students on law review determined to land that Biglaw job of their dreams, or young associates determined to keep that Biglaw job of their dreams.  In a public service of sorts, Lat has started a series on “small law,” meaning the practice areas that the inconsequential people practice, like personal injury, real estate, and, oh, criminal.

Aside from his use of an ambulance in the post, the point of which flies right over my head, here’s Lat’s promotion of Personal Injury Law:


But is personal injury getting a bad rap? If you’re a successful PI lawyer, you can make a fortune — all while standing up for “the little guy,” by vindicating the rights of the injured. See, e.g., John Edwards; Philip Corboy (recently honored by his alma mater, Loyola – Chicago, after making a major gift).

Here’s an open thread on personal injury law. Please share information, in the comments, about PI work — what it entails, your hours, your pay, opportunities for advancement, etc. Thanks.


P.S. One of our favorite fellow legal bloggers is a personal injury lawyer: Eric Turkewitz, of the New York Personal Injury Law Blog.

So in its favor is . . . money?  And Turkewitz, who is indeed a walking advertisement for PI, but then we can’t all be the Turk. 

But Lat’s somewhat lackluster support for PI law is nothing compared with the thoughts of his readers, I use the word “thoughts” in its broadest sense.  My favorite is comment 30 :


I went to a top 10 law school. Why on earth would I want to use my expensive law degree to do something that anyone can do?

But other prefer comment 11 :


Although working in personal injury would allow an aspiring lawyer to accrue mass wealth (unlikely, considering that they are in personal injury as a result of working insufficiently hard earlier in life), it is not worth the metamorphosis into a parasite that would result from said work.

Incidentally, I do covetable legal work at my father’s preeminent peer law firm.
The problem here, by the way, isn’t Lat’s facial snarkiness about the subject of “small law.”  He’s actually trying, within the confines of his audience.  The problem here is the attitude of the audience.  Think about this the next time a wave of Biglaw layoffs roll around and some of their refugees get hungry enough to ask for a job.

And just so we’re clear, I would be curious to know whether anyone who commented on the post at ATL thinks they can try a case, or whether they think they’ll win because they have the biggest mouth when commenting anonymously.

The Sound of Silence

My case was advanced so that we could appear before the court to take a plea.  It was a good plea; my client wanted it and I agreed that it was the right thing to do.  We were there before the courtroom doors opened so that I could sign the case up right away.  In this court part, arriving late meant that you spent the better part of the morning waiting for your case to be called.  The early bird definitely got the worm, and I would be out of there as quickly as possible.

The case was called and the perquisite words were spoken.  There was a disposition. The calendar assistant added the necessary charge to the complaint and spelled out the details.  And the judge then turned to me, as it was my turn to speak the mantra of the plea.

Silence.  I totally blanked.  For the life of me, I couldn’t remember the mantra.  There was a terrible silence.

Then, it came back me, and I mouthed the required words to withdraw the previously entered plea of not guilty and enter a plea of guilty to the new charge.  Everything went along as usual, and the deal was done.

As I left the courthouse, I was appalled that I had forgotten the mantra.  This is the second thing one learns in the trenches, right after the routine not guilty plea at an arraignment.  And then I realized the problem.  I hadn’t done a state court plea in years.  I suddenly felt a swell of pride, that I couldn’t actually remember the last state court plea I had done. 

It’s not that I’m “too good” to plead my clients guilty.  That would be a ridiculously foolish idea.  There are certainly times, and case, where a plea is the appropriate outcome and in the client’s best interest.  It’s just that guilty pleas are a last resort, a worst case scenario, most of the time, and something that I try very hard to avoid. 

To the young buck in the courtroom, I imagine that my silence when the mantra was supposed to come out of my mouth might be taken as a sign that I might not have known what I was doing.  After all, every young buck learns the mantra right away.  I hope that they instead might take my silence as a sign that the guilty plea mantra isn’t what being a criminal defense lawyer is all about.  Maybe they shouldn’t learn the mantra right away.  Maybe it shouldn’t be so ingrained in their heads that they could repeat the mantra in their sleep.

That’s my hope.  But I don’t think that’s what ran through their heads.  After all, it is the mantra.

Rakoff’s Revenge: When It’s Time To Say “No”

The SEC hasn’t been doing too well lately.  After the revelation that it was played for a fool during five separate investigations into Bernie Madoff’s Ponzi scheme, it’s now had it’s head ripped off by SDNY Judge Jed Rakoff.  The plea deal cut with Bank of America to dispose of charges that it lied to its shareholders about $5.8 billion in bonuses paid to Merrill Lynch executes required that BOA pay a fine of $33 million.  Of course, that money won’t come from the pockets of the folks who did the lying.

Judge Rakoff, who had to approve the deal, was less than thrilled:


It is not fair, first and foremost, because it does not comport with the most elementary notions of justice and morality, in that it proposes that the shareholders who were the victims of the Bank’s alleged misconduct now pay the penalty for that misconduct. . . . [T]he notion that Bank of America shareholders, having been lied to blatantly in connection with the multi-billion-dollar purchase of a huge, nearly-bankrupt company, need to lose another $33 million of their money in order to “better assess the quality and performance of management” is absurd.

He rejected the deal and set a trial date.  A roar was heard across Foley Square.  Now one might suspect, aside from some BOA executives and some really red-faced SEC lawyers, that everyone with half a brain would be thrilled by Judge Rakoff’s principled rejection of the deal (Mike at C certainly was impressed), both from the perspective of “notions of justice and morality,” seldom considered notions in rubber stamping deals, and that someone finally took corporate executives and their very close friends at the SEC to task a year after the Lehman Brothers collapse.

Well, not everyone.  Over at Conglomerate, David Zaring stands up for the downtrodden, the SEC lawyers,calling Judge Rakoff’s rejection of the deal “posturing”.

The good judge just turned down the plea deal between the SEC and BofA on its communications with shareholders on the Merrill deal.  And he set a trial date.  I of course think highly of Rakoff, and know that judges have to approve consent decrees that involve future judicial oversight (which makes for plenty of approvals, as they almost all do), but I’ve never understood this sort of posturing.  The parties aren’t going to go to trial, and the fact that the SEC would like to come back to court if BofA fails to meet the terms of its deal is hardly a great way in to close judicial supervision of those terms.  After all, what else is the SEC supposed to do, throw up its hands?  What if divorce courts started doing something similar?

Where’s the deference, Zaring demands to know.


When I was a government lawyer and I ran into angry judges for this or that reason, I always wanted a showdown.  “Fine, judge, dismiss the case, because we aren’t trying it,” I dreamed myself saying, or “go ahead, hold the United States in contempt, I dare you, but we’re doing things the way we want to, not they way you want to.”  My superiors always overruled me, thankfully for the rule of law, but really, parsing deals like Rakoff is doing here does no one any good.  Even if he just wants to change the fine and get more disclosures out of it all.  I prefer our litigant-driven system of justice to what they have in, you know, France.
Forget about the whole collusion aspect, the pocket agency, the friendly deal.  Forget that the SEC is a government agency whose existence is to protect the public, and that this deal stinks from the word “go” by making the victims pay the fine for the harm done them.  If the SEC says so, who is Judge Rakoff to say “boo”.  Really, this is the myopic view of the almighty government lawyer, certain that his “litigant-driven” system entitles a lawyer with a government ID to do as he pleases.

But Zaring’s real issue doesn’t appear to be the rejection of the plea deal per se, but that Rakoff set the matter down for trial.  As he says, the SEC isn’t going to trial.  Why?  Because they don’t wanna. That’s why they cut the deal, duh. 

There’s a reason all that money is spent on building courthouses, with their marble hallways and wood-paneled courtrooms.  It’s to try cases.  If BOA executives lied to its shareholders in order to scam their approval of a deal, then this is the place to resolve it if the people who did wrong are to be held accountable.  The fact that the SEC found a quick and dirty way around the problem, that the particular individuals who engaged in the fraud will shift their liability to the shareholder victims is not a reason to avoid a trial.  That the SEC lawyers don’t really want to be put to the test of trial means that we need new SEC lawyers. 

Zaring calls for deference, but there is a threshold of sanity that must be met before one hands over decision-making to some collusive deal that is so fundamentally absurd that it’s laughable.  What if the prosecution and defense cut a plea in a rape case that required the victim of the rape to serve the time?  But the prosecution agreed, so they are due deference, right?

That Judge Rakoff’s eminently sane rejection of this deal comes under attack for its failure to let the SEC have its way reflects a fundamental misapprehension by the SEC of its reason for being.  It exists neither to serve the financial industry, as friend and protector, nor to meet the expectations of lawyers who are, for a brief period in their career, in its employ.  And thankfully, Judge Rakoff said “no”. 

Zaring may be absolutely correct that the SEC lacks the gumption to go to trial, and won’t be forced into the well no matter what Judge Rakoff orders.  But that’s an indictment of the SEC as well as Bank of America.  Maybe we’ll need two trial dates instead of one,

Baby You Can Drive My Car (Update)

A bit of a dispute broke out on twitter when @AlexisNeely, who now bills herself as “America’s favorite lawyer,” twitted, “Anyone know how the mommy bloggers score free cars in exchange for review/blogging?”

Brian Cuban then took her to task for blogger payola, though acknowledging that if she could find anybody “desperate enough” to give her a free car, more power to her.

After watching some interviews with mommy bloggers on GMA, where they explained how baby companies were sending them stuff, expensive stuff like strollers and toys, for them to review and, as expected, to promote, I found the issue of blogger payola quite fascinating.  Do bloggers carry enough clout to be worthy of bribes? 

I review books occasionally, and the books are sent to me for that purpose and without charge.  Amy I guilty of blogger payola?  Perhaps.  Of course, as my reviews show, the fact that I don’t buy the books hasn’t inhibited me from panning them.  But I suppose that I should make clear that I received something for free.

I’m with Alexis on this one, and Brian too.  Send me a free car and I’ll tell you what I think.  I’ll let you know that it was a freebie too, but just send me the car and we’ll work out the details.  As a blawger, I write about a somewhat broad variety of things, and might persuade someone to give a product a chance.  So send me stuff. 

The fact is that blawging doesn’t net the blawger much of anything, aside from a few free books.  That clients don’t flock to blawgers (the claims of marketers notwithstanding) has been discussed to death,  We aren’t invited to A-list parties.  We aren’t even invited to E-list parties.  Sometimes, we’re not even invited to our own family’s parties, but that’s a different issue.

So if manufacturers, retailers, whoever, want to spread the word about their products, why not bloggers?  And if they are looking to sell to the demographic that reads blawgs, as opposed to those who have a keen interest in baby strollers, why not law blogs?  We likely reflect an very desirable demographic, though it will be hard to quantify the numbers per se.  And we use stuff, and there’s no reason why we can’t post a review about the items that readers might be interested in purchasing.

As to disclosure, as well as honesty, I don’t see an issue.  If it’s free, then we should say so.  The credibility of the review is less dependent on the price paid (or not paid) as it is on the credibility of the blawger.  If someone should send me a free, oh, Mercedes Benz SLS Gullwing (hint) and I hate it, you’ll know.  Besides, if I already have the car, it’s not like they can take it back.

Let’s face it, blawging is a relatively thankless thing to do externally.  What would be so terrible about getting a little vig for the effort, provided that we play it straight and maintain transparency?  So if anybody wants to reach my readers, feel free to send me stuff at will.  I don’t promise I’ll like it.  I can’t say that my review will sell a million of ’em.  But it certainly seems worth a try. 

I’ll be waiting at the front door for the car to arrive.  Holding my breath.  Turning blue.  Don’t make me wait too long.

H/T Bennett

Update:  Naturally, the very same day that I write that blawgers don’t get invited to A-list, or even E-list, parties, what do I get but an invite to a party at Christiane Amanpour’s house because of my blawging.  That’s pretty cool.  But I still want the free car.