Monthly Archives: September 2009

How You Want To Die

Let’s assume, for the sake of argument, the unavailability of Plan A, in your sleep surrounded by your 36 adoring great grandchildren. Let’s assume, for the sake of argument, that Plan Z, at the wrong end of a needle cocktail, isn’t mandated. And let’s assume, for the sake of argument, that a choice has to be made. That’s why we have advance directives, right?

It’s become an article of faith that determination of how we choose to go is best made when we have a clear and viable mind, aren’t under extremis, We all either have one, or are remiss for our failure. We know better. Whether it’s a matter of ending our life with dignity, or relieving the burden on our loved ones, everyone knows that Living Will is the way to go, right?

Over at Co-Op, Kathleen Boozang has shaken my confidence with this provocative challenge.

Rebecca Dresser of Washington University in St. Louis employs personal identity theory to oppose exclusive reliance on advance directives, arguing that the competent, functioning person who decides what health care she should receive, say, fifteen years hence is not the same person to whom these directives will apply. That is, that the person now in a nursing home with Alzheimer’s Disease who no longer recognizes his wife or children but seems basically content , is not the same “person” who executed the Advance Directive a decade or two ago with a dread of incompetence.

Speaking to the situation of her student, about to ship off to war, Boozang writes:

I have become disenchanted with power we accord autonomy. Sometimes other principles should prevail, and sometimes a decision is patently wrong or irrational or transient. I can’t bring myself to aid an 18 year old who should be on a date at the movies prospectively decide whether he’s willing to live a life without legs, or imagine whether she can tolerate living with the consequences of brain injury.

We assume that we know how we will feel when the time comes to make a decision. For the most part, people use advance directives to avoid heroic life-preserving care, assuming one believes life to refer to the functioning of some bodily organs without others, like the brain. We sign off on pulling the plug, and we’re confident with our decision.

It’s been such a long time since my Living Will was prepared that I can’t recall precisely what’s in there, though I’m sure that it reflects my more youthful cavalier disregard for life under conditions that were less than optimal. While not quite ready to pull the plug for losing my Adonis-like physique, an opportunity since squandered, I was clearly of the view that I did not want to live if my brain was significantly compromised. Is that still my view? And where, along the spectrum of intellectual deficit, am I ready to give it up?

While I’m not quite convinced that advance directives aren’t a better alternative than letting some doctor in Florida make my decisions for me, Boozang has given me good reason to rethink my views, and more importantly, to inject some additional concerns and advice to young people who seek a Living Will, whether they are in uniform or post-partum and feeling the need to nest. Do young people really have an adequate grasp of life, death and disability to make decisions about how much, or little, they are willing to suffer before choosing to die?

Much to think about, and important to think about. After all, it’s not like you can change your mind after Plan B goes into effect.

Readers Mailbag, Flack Edition

Many strange and interesting offers come across the Simple Justice mail desk. Some, like the ubiquitous link exchange offers from other websites, are so commonplace as to require no more than a click to forget. But every once in a while, an offer comes along that is so odd that it captures my attention. Once such email came yesterday.

John Reed
Media Relations

Stoy Idea Summary: Grace Suarez is a appellate lawyer working from home using her iPhone and a simple database, Bento, from FileMaker to make her busy law practice as paperless as possible.

INTERVIEW; an interview is available with Grace Suarez.

PHOTOS: High-resolution photos of Grace Suarez and her usage of this technology can be emailed to you.

How does your schedule look to talk with Grace about her usage of an iPhone and the Bento database for that phone?

Thank you.
John Reed

I’ve heard stories about how letters were lost behind counters, or through cracks in the wall, and weren’t heard from for decades, maybe even generations. Could this happen to an email? Could John Reed have sent this to me a decade (or more) ago, when the paperless office concept was a little closer to a new idea? With high-resolution photos, no less.

But then, there were no iPhones then. No, this was new. Some flack actually sent out an email about an idea that had been around, and practiced, for more than a decade, as if it was novel and interesting. So I let Reed know (because I’m a helpful sort of guy) that he was shooting blanks, to which he responded:

Hmmm, other media love it.

We’ll opt you out

Hmmm indeed. I wonder if someone is considering a feature length movie? In black and white. But still a talkie. Given the extent of discussion around the blawgosphere lately (like here, here, here, here, here, here, here and of course, here) about the state of marketing for lawyers, though I would guess Reed is really promoting Bento and not Grace Suarez, high-resolution photos and interview opportunities about her usage of an iPhone notwithstanding, this strikes me as yet another critical point to be made.

I bet Grace Suarez is a fine lawyer, who is making a sincere effort to pursue the paperless office, though I recall Andrew Bluestone winning an award from the ABA for doing so about than a decade ago. But by allowing someone who apparently hasn’t got a clue what he’s talking about to use her in his lame promotion, and offering high-resolution photos and an opportunity to interview about iPhone usage (OMG, does she really have an iPhone! Wowwy-kazowwy!), she’s placed in the middle of some unwanted attention.

If you’re a lawyer, is this really the attention you want? Don’t be seduced by the lure of high profile, especially when the effort is as pathologically pathetic as Reed’s. Next week, Grace Suarez will travel to court in a motorized vehicle! High-resolution photos available. This is not the way you want your name spread around the digital universe.

Also yesterday, the ABA Journal put out a story entitled How a Solo Gained More than 600 Facebook Fans for His Fledgling Firm. You can’t make this stuff up. Not a word about whether he’s gained a single case, no less created a successful, or even sustainable, law practice. Just that he’s got 600 Facebook fans. That’s almost as important as @Rex7 having 70,000 twitter followers, but no job. Perhaps the lawyer involved is a great lawyer, competent and hard working, but this article makes him appear to be a loser whose only claim to fame is the collection of names on Facebook. Why would he want to promote himself in the ABA Journal as a loser? Why would the ABA Journal post such a vapid story?

Promotion is certainly on the mind of many, as it’s being pounded into the heads of lawyers across the spectrum as the fastest, easiest way to get your name out there and become a great success. But perhaps you ought to consider, in light of what’s happening to lawyers who forget that they’re professionals and instead allow themselves to be sold like laundry detergent by their hired gun experts, to not take John Reed’s call.

And now forsomething completely different.

Yet another brainstorm offering the lure of giving free advice, because the other 50 that do so aren’t sufficient.

Our website, www.Newlawyer.com, is a great resource for the public. The whole idea behind the website is a professional network of attorneys located across the United States who offer free advice to those seeking it via free consultations. More times than not, attorneys will charge a client before they speak to them for the first time. However, in this day and age, many people cannot afford to speak to an attorney even the first time. Therefore, we offer a great resource in that 90% of our attorneys are available to speak to the client at no cost.

I’m holding out for a website that will let me try cases for free on the internet. Wake me up when you’ve go that nailed down. And it wouldn’t hurt if you could also provide a listing of supermarkets, clothing stores and restaurants that feed and dress lawyers for free. For those of you who believe that your future is in giving free advice to people on the internet, I have but one question: Do you have an iPhone and some high-resolution photos like Grace Suarez?

The First Day, Again

Today is the first day of school in New York. Carefully timed to miss the president’s message to students by a whisker, young men and women will march forward, some in anticipation and other with trepidation. Unlike the father in the television commercial, this is not the most wonderful time of the year for me.

I have only one child left at home, with one having moved on to greener pastures. When the first one shuffled out of the house, I realized that she went from crawling to texting before my computer booted up. The alacrity with which a child leaves you is unlike anything else. So much time, love and effort is dedicated to their welfare, and then they’re gone.

Many of my dear friends send their children off to renown boarding schools for their high school education. These are feeder schools to the Ivies, where other well-to-do parents send their children to mingle amongst their own, learn how to be both ladies/gentlemen and survivors. I kept my son home for high school. I couldn’t bare to lose him a day earlier than necessary.

My daughter went to boarding school for three years, and while I cannot express the depth of my appreciation to her school for the exceptional job they did, I regret every day without her. There are too few under the best of circumstances, and the loss was brutally difficult. But it was necessary under the circumstances, and I suffered her absence for her sake. It was the right choice.

When my friends children come home for the occasional weekend visit, holidays or vacation, they are almost unrecognizable. They grow taller, more manly or womanly, more . . . gown up. I wonder to myself how my friends feel about missing each day that their children changed, grew hair above their lip or curves that replaced straight lines. I never say it aloud, as it’s none of my business, and I certainly don’t want to make the pain any worse.

It’s comical as parts change, but not quite the whole. Seeing the near-man mustache deepened with the remnants of chocolate milk, I see the manchild. Some days, I believe that he’s grown overnight, as he stumbles downstairs growling at me for waking him up, or challenging the adequacy of his tooth-brushing. But I cherish the change that comes each day, even if it’s hardly as apparent as when they are invisible for months at a time.

There will only be a few more first days of school for me. Then it’s over. I will miss them terribly.

Lesson From Touring Brazil

While there was little doubt that Lori Drew’s conduct toward Megan Meiers was wrong, and there ought to be a law, there is no doubt that pedophilia tourism is an outrage far worse. No responsible human being would argue to the contrary, as there are few more disgusting, disgraceful, inhumane acts than pedophilia. So what could possibly go wrong with a harsh law prohibiting it?

From the BBC, an unnamed 48 year old Italian tourist, visiting the coastal city of Fortaleza with his wife and daughter, was seen kissing his 8 year old child in public.

Witnesses told police the man allegedly touched the girl in an intimate way.

Under a strict new law partly designed to combat child sex abuse in South America’s largest country, he faces eight to 15 years in jail if convicted.

The unnamed man has been in custody for almost a week. A new attempt to secure his release this weekend failed.

His Brazilian wife says the case is all a misunderstanding, while staff at the resort where the incident took place have been reported as saying they saw nothing unusual.

We want so desperately to put a stop to conduct that harms others, especially children. But for those who contend that there has to be a way to separate out the crime from the innocent conduct that is somehow mistakenly swept along with it. stories like this serve to remind us of how difficult this task can be.

While it’s conceivable that this Italian tourist touched his daughter in a way that alarmed witnesses, and even that it was improper and perhaps even criminal, the more likely scenario is that this was a misunderstanding, perhaps culturally driven, or perhaps even grounded in prejudice.

He was reported to the police by a Brazilian couple who claimed he had been touching a young girl inappropriately and had kissed her on the mouth while they were both at a swimming pool close to the beach in full view of other tourists.

It appears the couple who made the allegations did not know that the man was with his daughter.

The north-east of Brazil has for some years had a problem of pedophiles traveling to the area, often from overseas, and strongly-worded warnings about the penalties for exploiting children are posted in most hotels.

However the wife of the arrested tourist says it was all a misunderstanding by witnesses who had misinterpreted seeing a foreign white man with a young darker-skinned girl.

Some people think that a father kissing his 8 year old daughter on the mouth is inappropriate. Even worse when it’s a white man and a darker-skinned girl. This had all the makings of a crime.

Given the limits of the written word, and the often quick and dirty drafting of legislation in reaction to public demand, suffering further from carelessness, compromise and demagoguery, law can become as much of a problem as a solution. Some would hope that the police or prosecution would serve as a safety valve on the unintended, even absurd, application of law. Ah, hope. Haven’t we seen enough videos, read enough stories, to know better? Consider former prosecutor,now Judge, John Jackson’s debunked rationalization for maintaining his belief that Cameron Todd Willingham deserved to be executed.

The anticipation, or expectation, that laws will be enacted to save us from every perceived wrong, but will be handled delicately and thoughtfully, is mere wishful thinking. While many police officers and prosecutors will exercise sound discretion in the performance of their duty, some will not. Whoever is on the receiving end of the overly zealous enforcer will take no comfort in the latter.

Whether we see it as overcriminalization, or society run amok in its desire to rid itself of criminal conduct, we ignore it at our peril. We would all hope to live in a world where no one harmed anyone else, but wishful thinking won’t overcome the collateral damage in our rush to reach legal Utopia.

Law, Meet Malthus

Dan Slater, who had done a killer job at the Wall Street Journal Law Blog after taking over for Peter Latman and before being disappeared, has re-emerged at the New York Times in this scathing blast at the legal profession. The thrust is clear: We’re churning out way too many lawyers.

As firms begin an industrywide overhaul, which has entailed slashing jobs and reconsidering hidebound inefficiencies like the lockstep salary, students will compete for half as many $160,000-a-year jobs this year as they did last. According to the National Association for Legal Career Professionals, the 2008 recruiting season marked “what is likely to be the beginning of a weaker legal employment market that may last for a number of years.”

Meanwhile, as job opportunities abate, law school matriculation rates rise unchecked. Each year, the number of students who enroll at one of 200 law schools approved by the American Bar Association inches closer to 50,000.

No one, but no one, seem to either care or take responsibility that we are drowning in lawyers. The law schools won’t voluntarily cut their numbers, particularly since students are profit centers to cover the cost of scholarship, the dirty little secret of the Academy. Little Johnny’s big tuition bill has nothing to do with the cost, or value, of his legal education, but subsidizing the cost of professors busily writing articles and books to attain tenure or prove they’re the next Cardozo.

The ABA, charged with validating the worthiness of law schools, continues to put its imprimatur on buildings with cancerous libraries without limit.

The American Bar Association, which continues to approve law schools with impunity and with no end in sight, bears complicity in creating this mess. Yet a spokeswoman, citing antitrust concerns, says the A.B.A. takes no position on the optimal number of lawyers or law schools.

So the numbers go up, up, up, with no end in sight. Schools won’t do it. The ABA won’t do it. And who wants to tell Mom that her baby is butt ugly, or that her apple pie tastes just awful. After all, we’re talking about education, the soul of the American dream. There is no greater promise promoted than that an education assures us of a bright future, a successful future, a winning future. Who doesn’t want to be a winner, or for their children to be winners?

Sadly, it’s a lie. The promise of hard work and a guaranteed job starting at $160,000 is an anachronism. Besides, the work is miserable and you won’t have time to wheel around in the Ferrari anyway, since you will be spending every waking hour in the library, or holding some arrogant partner’s briefcase, or fetching a mocha frapucino (Grande, Vente is for losers).

But more importantly, we can’t use you. Supply and demand is still a viable concept, and we are way oversupplied. It’s had some nasty effects on both the profession and society, and it’s time to stop making excuses for it and start recognizing it, and the problems it has caused.

Sure, we’ve produced a generation of Slackoisie carrying a boatload of debt, barely capable of practicing law and complaining bitterly that the profession needs to change its evil ways to make their lives funner. But they had a choice in the matter. They could have studied math or science, rather than philosophy, political science or dead romance languages, and found themselves a useful career. That they couldn’t stand the sight of blood isn’t a justification for allowing anybody who breathed admission to law school.

In fairness, I am sympathetic that no one explained to you what the law is, or what lawyers do, before you took the LSATs, giving you the opportunity to run away before making the biggest mistake of your life. The law is not for sensitive poets, or quick buck artists, or people who want to make happy hour. Every day. The law is a profession. Well. it was once a profession.

Lawyers carry an enormous responsibility. We have these thingies called “clients”, who are real people or businesses that expect us to be honorable, fair, reliable. These real people or businesses rely on lawyers to perform this thingy called work, and to do so on their behalf, expecting us to be diligent and careful, to appreciate that their existence and lives and livelihood depends to some extent on our performing that work thingy they expect of us. Even when they aren’t sitting in front of us, they expect us to hold their interests dear and to labor on their behalf, with their interests coming before our own. These are the duties of a professional.

But when there are either too many lawyers running around, or too many lawyers culled from people poorly suited to handling the responsibility of a lawyer, a mess ensues. Lawyers start taking on cases that lack merit, in the off chance that they can glom some quick money out of it. Lawyers start raiding the escrow fund to keep up appearances because the phone hasn’t rung in a while. Lawyers make promises they can’t keep to separate a client from his money, lest anyone with cash in his pocket walk out the door.

This was once an honorable profession. There was an appreciation of the trust that people, businesses, society placed in our hands. We served others because that was our responsibility, our duty. Sure, there were always some bad apples in the bunch, but the vast majority of lawyers conducted themselves with the utmost integrity because it meant something to be a professional, to be handed the keys to the candy store knowing that we could be trusted not to eat any more than we deserved. It was a matter of personal honor.

Today, lawyers sneer at honor, as if it’s some relic that only old men still talk about. The law has changed into a business driven by self-promotion and self-deceit, where we rationalize scamming and spamming as necessary in this dog eat dog environment. Lawyers have no choice, they say, but to wrestle in the gutter to pay off those student loans, to pay the lease on the BMW, to make feed the kids, to make mommy proud. No one wants to be the lawyer who starves, and so they do whatever they have to do to survive.

Supply and demand. Had supply been not been cancerous, demand would be more than adequate to assure that everyone worthy of the title lawyer was well cared for. There would be no need for a cottage industry of legal marketers, pigs in lipstick urging us to ignore the slimy feelings and get into the selling game, like new, improved laundry detergent. I’ve been told many times that this is how the game is played today, both by the buyers and sellers of iniquity, assuaging their conscience for disgracing their profession. Spare me.

Our failure to mind our own profession has raised Malthus from the dead. There are dead bodies lying outside the offices of Biglaw. There are lawyers wearing hotpants walking the streets in search of business. There are miserable clients wondering why their smiling lawyer sold them down the river. And there are honorable men and women wondering why they are in the company of these others.

It’s not too late to change this. The first step is close the supply valve to a trickle. And point sensitive poets elsewhere.

Define Bully

The New York Times offers an editorial supporting Judge George Wu’s tossing of the Lori Drew conviction. Not exactly a controversial position, at least around here. But the editorial, like so many written on a holiday weekend in New York City, concludes with an odd paragraph that leaves one to wonder how much grog Punch Sulzberger was drinking.

Lawmakers should enact laws that can withstand challenge to give prosecutors tools to go after bullying of all kinds. What prosecutors cannot do is stretch federal law to label run-of-the-mill Internet activity as criminal.

Of course, there is a liberal tendency to believe that every wrong requires a law to fix it, and wrong is largely defined by its undesirable outcome. The difference between liberal and conservative approaches is that the latter would require no law, just a darn fine execution to fix the problem, without all those namby-pamby details that muck up the works.

But before lawmakers rush out to pass another criminal law, perhaps someone ought to consider what we’re talking about. The popular word for describing the problem is “bully”. The dictionary definition is “one habitually cruel to others who are weaker,” but that’s hardly the definition implied by the Times, or generally used by anti-bullying advocates. Rather, bullying appears to be the conduct of anyone who says or does anything that makes someone else feel threatened or merely badly. In other words, you’re a bully if you hurt someone’s feelings.

Do we really want a law to criminalize people who hurt someone else’s feelings?

Certainly, there are many who are of the view that they are entitled to speak their mind without fear of someone else telling them their an idiot. This permeates the argument of Danielle Citron, who takes it a step further by claiming that it’s women who are most frequently the target of criticism, which therefore converts it from hard feelings to a gender based attack. The curious reactionary position is that by elevating the free speech right of bullies, we inhibit the free speech right of women, since they are disinclined to speak their mind knowing that someone might disagree with their ideas and tell them that they’re stupid. This will hurt their feelings, thus making giving rise to the bullying issue.

I’ve been called a bully for criticizing the ideas or conduct of others. Of course, no one I’ve criticized is weaker than me, and they have every opportunity to defend themselves or criticize me back. But we’ve reached a point in our common understanding that it’s not the nature of the threat, but the sensitivity of the object of the threat, that defines the wrong. I’m a bully because I made someone else feel badly about themselves. Why anyone cares what I say is beyond me, but apparently they do sufficiently to pin the label on me.

Here’s the problem. People promote a lot of ideas on the internet. Some are fascinating and well-conceived. Some are just bone-headed dumb. Some are downright evil. But ideas are, in themselves, harmless. Sure, no one likes it when someone disagrees with them, or even worse, says their ideas are stupid (unless covered up by so many glowing adjectives that one is incapable of understanding what the heck they are saying). But that’s the nature of presenting ideas. Not everyone is going to agree with you, and by engaging in the act of publicly opining, one invites scrutiny.

There’s a huge difference between ideas and engaging in conduct based upon those ideas. There are laws, plenty of laws, prohibiting conduct. We can’t physically attack people, whether for financial gain or spurred on by some angry idea floated on the internet. The act is criminal. It’s already covered. To the extent that the harm done carries a varying degree of moral culpability based upon the intention or motivation of the performer, it can be addressed within the scope of sentence. But the attack itself is already a crime.

So what this anti-bullying law comes down to is not the conduct to be prohibited, since it’s already prohibited, but the wrong of hurting people’s feelings. Bear in mind that as awful as the Lori Drew case was, Megan Meiers’ committing suicide is an extreme anomoly, as few people would be pushed to harm themselves as a consequence of hurt feelings. Laws derived from anomolous situations, particulary when given the name of the victim, are invariably the most dangerous laws enacted.

The anti-bullying advocates (are there any pro-bullying advocates?) press for a world where people will no longer be permitted to present ideas that offend others, or more accurate challenge ideas that others present in a way that hurts their feelings. To remove the anti-bullying pejorative language, they want to criminalize criticism. Citron would do so only for women, apparently because they are too weak to defend themselves from brutish internet men. I think more highly of women than she does, having had my butt kicked far too often to think of women as the weaker sex.

But the desire for a world where no one’s feelings are ever hurt, upon pain of criminal sanctions, is absurd. Not only does place the gun in the hands of the most sensitive soul, but it would foreclose debate, discussion, disagreement. In the name of avoiding hurt feelings, we’ve already created taboos that preclude meaningful discussion of many topics, the most notable being race. Do we really want the bully police hauling in anyone who challenges beliefs for Hurt Feelings in the Third Degree?

As kids, we were told that the rule of thumb was “sticks and stone may break your bones but words will never hurt you.” The truth is that words can hurt, but only feelings. That’s the risk we take when we express ideas, when we interact with others, when we extend ourselves out into the world. If you don’t want your feelings to be hurt, then hide inside your room. But if you go outside, exist with others, offer your thoughts, someone may well disagree with you and hurt your feelings. That’s what it means to live.

Does the New York Times really think we need a law making the expression of disagreement a crime because it will hurt some person’s feeling? Apparently so, and that’s just fundamentally stupid. I hope I didn’t hurt your feelings, Punch.

All Reasoning Is Not Created Equal

In a post about the irrationality of testing methodology, Jeffrey Harrison at MoneyLaw touches on a subject that sticks in the craw of first year law students and those who are deeply concerned with keeping them all warm and fuzzy. Being that it’s the opening of another round of the game show, “So You Wanna Be A Lawyer,” unemployed edition, this seems a particularly good time to remind law students, and those who deign to teach them, that reasoning matters.

And now back to logic. Remember your high school math classes. Some teachers said to show your work and then gave you credit if you got everything thing right except, say, the final step. Others just machine graded.The problem is this. In most complex math problems there are many ways to get a wrong answer. Some reveal that the test taker did not have a clue. Some reveal that the test taker forgot to carry the one on the last step. The machine grader gives them the same credit although their knowledge and understanding are quite different. The teacher who requires the student to show his or her work makes a distinction because there is a distinction. Of course, the same is true in law where the issues are not simply complex but more nuanced.

Ignore the grading aspect and focus instead on the reasoning aspect. One of the most disturbing, yet recurring, themes amongst law students who comment around here is their inability to distinguish between emotion and reason, causation and correlation. Up to now, 1Ls got away with winning arguments any way they could. It was perfectly sufficient if they achieved their end by screaming louder or withholding sex. Winning was winning, and the rest was simply finding the mechanism to accomplish the goal.

This doesn’t tend to work nearly as well before judges, and therefore isn’t an acceptable basis for becoming a lawyer. Despite the touchy-feely approach to legal education, where the self-esteem needs and holistic concerns of personal morality and satisfaction transcend the nasty, ugly, demeaning approach of demanding that students be capable of both assessing a fact pattern for its relevant details and then crafting a rational argument that logically flows from the facts and law to the end to be achieved.

They don’t wanna. They like their own emotional argument, and if it’s good enough for them, then it should be good enough for the rest of us. It’s their right! And what makes reason so much better than whatever it is they believe?

In Jeffrey’s post, he notes that it’s irrational to mark the student who gets the ultimate answer wrong the same whether it’s been well-reasoned, though marred by minor or single error, or wrong because it’s devoid of reason and understanding. Sure, wrong is wrong ultimately, provided that there is a discrete right and wrong answer. As lawyers, we come to realize that right answers are only right until some court somewhere decides otherwise, leaving us with quite a few fuzzy lines. Over enough time, we even find that some black letter law is written in the sand, and is subject to change with the swipe of a hand.

But the ephemeral nature of law tends to get in the way in law school, and is best left for the lessons of misery as one matures in practice. Law school is for the teaching of foundations upon which nasty experience can build, and foremost of our foundations is to think like a lawyer. The rest can be learned in a diligent afternoon.

Logic isn’t personal. It doesn’t care how you “feel” about something. Your preferences are irrelevant. And no, you’re not entitled to your own opinion.

This doesn’t mean that you can’t be creative in the crafting of an argument, or the understanding of why a court reached a particular holding. Indeed, a deeper understanding, informed by experience, may often yield a different rationale for a holding than the one commonly accepted and taught to you. Provided you understand the accepted rationale, taking the initiative to challenge the rationale by a logical, albeit different, line of reasoning is a higher order skill. But it must still be based on sound reasoning. Of course, your professor may not agree with your explanation and burn you for it on tests, but that’s the risk you take.

Jeffrey asks whether logic is still taught in schools. It is in law school, even if not called logic anymore. Or at least it should be if law school is to serve any purpose. The ability to craft and convey a logical rationale for a position is fundamental to the practice of law. It’s time to put away the child-like arguments that have worked well up to now, and may still work at beer blasts and sock hops. But they won’t work with other lawyers and judges, none of whom care a whit about how you feel or whether your self-esteem is undermined when you’re told that your argument is rejected with a terse “denied”.

And as lawprofs decide whether the ease with which a scantron satisfies their grading is more important than the ability of a student to present a well-reasoned position, even if it falls short of perfect, consider whether motivating and incentivising your students to leave their childish notions of reason behind and strive to achieve logic is more important than remembering the case name or getting the holding right. It’s not that holdings don’t matter, but any student who gets a good grade but can’t reason will fail as a lawyer.

From what I’ve seen here, and I’ve seen quite a bit from our law student and young lawyer friends, we have a severe logic gap coming out of law schools. They can’t think worth a damn. As the trend toward warm and fuzzy at the expense of sound reason spreads, it’s only going to get worse. If young lawyers can’t distinguish between sound reasoning and their personal feelings, they will fail as lawyers. And yes, as Jeffrey suggests, their failure is a reflection of the failure of their legal education to teach them the difference.

Welcome to law school. I hope you know what you’ve gotten yourself into. Now get to work.

Love’s Labour’s Lost

It being Labor Day and all, what better time to express some thoughts about those who exist to serve those who cannot help themselves, the infirm. Certainly, there’s no fault to be found in those born with challenges that the able-bodied will never know or understand, and they depend on the kindness, the empathy, the labor of a cadre of workers who care for their needs. Without this labor of love, who would tend to them and give them the care, the kindness, they so dearly deserve?

And then we have those whose toil somehow manages to be all about them. Their politics. Their self-righteousness. Their holding people who have been entrusted to their care hostage to their official prerequisites. Where once laboring the field of healthcare was about serving others, there’s at least one official woman who appears to have no qualms about using her post to punish a patient whose needs don’t match her wants.

Meet Nyle Magi, who suffers from MS and paralysis. And meet Adrien Vaughen, official woman.

How did we become a place where labor, the people we pay to perform a service and nowadays often referred to as “human capital,” a phrase developed to feign greater admiration for “our greatest resource” while simultaneously diminishing humans by relegating them to another cog in the wheel, believe that they, the ones getting paid to provide a service, are in charge of us, the dopes doing the paying? If they don’t like the gig, they don’t have to do it. Slavery was long ago abolished. Nobody puts a gun to their heads to do any particular job.

Yet, the ethic behind labor has evaporated. I’m not (this time) talking about the work/life balance debacle, but about the regular, everyday sort of labor, where we are thrilled beyond belief when we find someone who happily does what they are paid to do, performing well and without complaint. It doesn’t happen often.

This is as true of the lawyer as the fellow who digs ditches, though the consequences are obviously very different. But the notion of hard work, service, responsibility has become foreign to the American dream. Worse still, that harm befalls those who make the mistake of relying upon others, particularly when they have little choice in the matter, is a travesty. A lousy paint job is a nuisance. A man left to wallow in his waste by someone charged with his care is an outrage.

While Labor Day was meant to be a celebration of the efforts of those whose perform the tasks that keep our nation running, there are too few of us remaining who deserve to be celebrated. It’s not that the Wobblies were wrong, but that we’ve transcended the separation between labor and capital to the point where labor holds capital hostage rather than the other way around.

For all those who are struggling in this difficult economy, or raise the “Buy American” flag as if the fault belongs to the shoppers rather than the producers of crappy goods at too high a price, take a hard look at whether you earned your paycheck or skated by doing as little, or as poorly, as you could possibly get away with.

But if you, like our official woman, with smile intact as she condemns in the video, have chosen to use your petty authority to do harm, then I have a special Labor day greeting for you. Suffer as you make others suffer.

This video implicates other issues as well, from medical marijuana to cluelessly hiding behind patient confidentiality to conceal abusive and ignorant harm. But it’s Labor Day, and so we focus on happy holiday matters. Happy Labor Day, Adrien Vaughen. No yucky diapers for you to change.

H/T Balko

But For Video, The Weekly Version

I had a beef with my good buddy Packratt at Injustice Everywhere. He’s killing me. And, he’s making me feel bad. I don’t care to feel bad, so naturally I took it out on him rather than admit that it’s entirely my fault.

The problem was simple: He’s so far ahead of the curve, and produces so much information on police misconduct and abuse, that I can’t keep up with him. Worse still, when I post about a story, I later learn that he had the story a month earlier than anyone else and I just failed to catch it. Nobody likes to feel inadequate, and PR keeps making me feel that way. I hate him for it.

In an act of generosity to his lessers, Packratt sent me a link to his latest post, The Week in Police Misconduct Video. Now people like me tend to latch on to a particular video, dissect it, deconstruct it, and then do my best to explain how and why this reflects a failing of our society to address the harm we cause ourselves in an effort to highlight our faults and improve our condition.

Packratt, by his efforts to collect and document the plague happening across our nation, doesn’t have the opportunity to treat each video with such detailed efforts. There are just too many. They come too quickly. They become overwhelming by their sheer mass. God bless the dash cam, without which we would never have documentary evidence of what really happens on the streets of America, or how unbelievably dumb so many cops are that they would behave the way they do on video.

Having hopefully made a sufficient mea culpa, and given you enough reason to go immediately to Injustice Everywhere and watch each of the five (yes, count ’em, 5) videos that appeared this week alone, let’s cut to my favorite and ask ourselves why.

The trick in this Beaumont, Texas, video isn’t to watch the fellow in the forefront, who one would otherwise assume to be the star, but rather the guy in the background on the right. He’s standing there, doing as he was apparently told, hands on the roof of the car. Eventually, he’s taken to the rear of the car and appears to go cooperatively, no issues raised. So far, no biggie.

Then comes some galoof with a baton. He’s kinda doofy looking, probably unhappy with his sex life and feeling rather unfulfilled in this arrest as no blood has been spilled. What’s a cop to do?

In this video, the man in the background on the right is taken around the back of the pulled-over car to be cuffed when another officer pulls his baton, walks towards him, and then unleashes a barrage of 13 baton strikes to the apparently compliant suspect. If that wasn’t enough another officer then tasers him after he’s taken to the ground.

Bet you never saw the Taser coming! The sheer gratuitousness of the violence, it’s utter pointlessness, is what makes this my fav of the week. No excuses. No explanations. The cop just wanted to give somebody a good tune-up, and so he did.

Two additional details worth noting. First, none of the other cops were apparently bothered in the slightest by their compadre’s whupping of this otherwise docile fellow. Second, even a neaderthal like doofy-cop should have been aware of the fact that he was on candid dash-cam, yet the synaptic connections were obviously not firing, leaving one to wonder just low the intellectual bar is set in Beaumont. Remember, people’s lives are at stake based on the processing speed of police officers. If they can’t figure out what to do when it’s in their own self-interest, what are the chances they can figure it out when it’s only about you?

And if there was no video of this utterly pointless, totally senseless, absolutely gratuitous beating, would anyone believe it happened? I can hear the prosecutor now, “Why would Officer Jones want to beat Derrick Newman? He’s got nothing against him.” I’ve heard that argument a thousand times before there was ubiquitous video. That’s a thousand beating that went unbelieved, right Judge?

So Quantity Doesn’t Trump Quality

While we’ve often come at the intersection of law and technology from different directions, making the potential for a massive crash quite strong, I’ve always had great respect for Kevin O’Keefe, proprietor of Lexblog, Real Lawyers Have Blogs and, of course Lextweet. While he’s always been a vigorous proponent of technology, he’s never wrapped it up in a bow of baloney, It’s always been the delivery system for meaningful work rather than a magic bullet in lieu of it. I respect that.

Yet as an early adapter of Twitter, which produced Lextweet, a twitter feed of lawyers and lawyer-type folks apart from the rest of the twitterverse, he put some relatively unattractive photos of people on the right sidebar and called them “Top community members on Twitter.” That’s where I first learned that Rex7, an unemployed law student, had collected more twitter followers than anyone else (over 71k at the moment).

In the past, I’ve had some fun challenging the notion that collecting followers on twitter was a meaningful or worthwhile endeavor. But was I missing something? Perhaps there’s a prize for having more followers than the next guy, or promoting oneself despite the ready appearance of buffoonery? After all, if Kevin thought it worthy to put pics and numbers of these twitter superstars on his sidebar, who was I to doubt that this meant something important?

This time, apparently, I got it right and Kevin, after a while, got to the intersection a bit later than me. Fiery crash avoided.

There’s a growing number of people on Twitter who are seeking large numbers of followers, apparently as a showing of their importance.

Why the chase the for followers?

Ego?

Insecurity?

Need to feel important?

Trying to sell services and products by spamming others?

Whoring themselves out to other spammers?

Trying to increase their measure of influence?

I don’t know. But just because someone has a lot of followers on Twitter does not mean they are offering anything of value on Twitter or that they have any expertise in anything, let alone social media and social networking.

As wonderful, or at least enjoyable, as many find technology, the knee-jerk reaction to new opportunities seems to be to establish oneself as dominant through the most obvious means. In the case of twitter, it’s number of followers. In a rational sense, this metric would be more of failure than success, since as Kevin notes, the things one does to accumulate followers are rather ugly and counterproductive.

There’s a tipping point between being followed by people you know, you like, you care about and who care about you, and the scam factor of mere numbers. It’s got its analogies in every new medium, and can invariably be ascertained by the growth of slimebags selling magic ways to achieve greatness without really trying.

The irony here, of course, is that Kevin, in his early zeal to promote twitter, which he saw as one of the greatest advancements in technology after the blog, was one of the foremost promoters of big numbers by his inclusion of the most-followed twitterers in his sidebar. It was a mistake in the first place, and he now realizes that it led lawyers down the wrong path.

I’m sorry if LexBlog promoted some of this follower chase by LexTweet displaying legal professionals using Twitter in the order of how many people were following someone. We’re working on ways to change that.

Quantity may have been the quick and easy way to judge in the early days, but it’s false god.

If you’re looking for followers on Twitter, do it the old fashioned way. Share news and information of value to your target audience. Word gets around and more people will follow you. Follow others you’d like to get to know and learn from. Share things of personal interest outside the law. You’ll find that others with similar interests will begin to follow you.

As with blogging, or pretty much anything else in life worth doing, quality will always bear out in the end. I was resistant to twitter in the beginning, thinking it another fool’s game for people whose thoughts never exceeded 140 characters. I was wrong. I’ve learned that it has its place and, frankly, has become a regular mode of communication for many, including myself.

But even with my modest 600+ followers, there are a bunch who are totally worthless, following me for the follow back (ain’t happening), to sell me something (ain’t happening), or to entice me to view their dorm cam (really ain’t happening). I’ve given up trying to delete them as they tend to go away on their own when they find out that they’ve followed someone who is worthless to their purposes. As I noted a while back,

Give me 10 followers with whom I actually want to interact and I’ll trade you 10,000 spammers.

It’s important that Kevin has come on board, because he carries far more sway in matters of technology than I ever will. My concern is that the techno-grab that has been embraced by so many lawyers as the magic bullet to solve their business deficits has done grievous harm by undermined the few vestiges of honor, integrity and client service that remain in a once-vaunted profession. By taking on those who have spent their time collecting worthless followers, and thereby trying to slay a monster than he was integral in creating in his own self-interest, Kevin has made as strong a statement as he can. The day of dumb quantity is over. It’s time to grow up.

Quality trumps quantity. Kevin O’Keefe says so. Now if he would only remove those pics from his sidebar.