It’s been a long time coming, but Southern District Judge Shira Scheindlin  issued an injunction against the notorious “Clean Halls” program, later renamed the Trespass Affidavit Program, as the plaintiffs demonstrated a likelihood of success of prevailing on the merits that the program is unconstitutional.

Finally. 

The program, which has been widely  misreported following this ruling as the Stop & Frisk program by overzealous but undereducated reporters, has been a constitutional catastrophe for more than 20 years, so much so that even the Bronx District Attorney had enough of it. 

The police, landlords, some tenants and cop teachers from John Jay College argue that it is an effective weapon in fighting crime and cleaning up their buildings.  No doubt it is, as would be police having the authority to break into homes at night at will. There is no shortage of effective weapons in whatever war we’re fighting that violate the Constitution.  This is just another one.

Judge Scheindlin, in a lengthy opinion, wrote:

While it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the N.Y.P.D. has systematically crossed it when making trespass stops outside TAP buildings in the Bronx,

An element of the New York Police Department’s stop-and-frisk practice was deemed unconstitutional by a federal judge on Tuesday, a ruling that may have broad implications for the city’s widespread use of police stops as a crime-fighting tactic.

Is it fair to call the Clean Halls Program “an element” of Stop & Frisk?  Perhaps, even though it pre-dated Stop & Frisk by more than a decade, is grounded in putatively authorized trespass affidavits and presents at least a marginally arguable basis to seize and question people entering private premises. 

In contrast, the Stop & Frisk program is founded solely upon the fiction that police, spotting something about a person walking down the street, minding his own business, that gives rise to some unspecified curiosity on the cop’s part, creates a basis for the officer to throw the black kid against a wall, interrogate him and search him.  In other words, it is far more intrusive, unjustifiable and unconstitutional. 

Ironically, Judge Scheindlin is also the judge on two additional suits challenging Stop & Frisk, and it is fair to say that the same core constitutional issue exist in all three actions. The decision in this case, thus, bodes well for questions of similar constitutional deprivations in the others, and to that extent, it’s not entirely wrong to connect the Clean Halls decision to the Stop & Frisk program.

But there are two problems with conflating the cases, as the media has unfortunately done. First, the war against Stop & Frisk is hardly won, despite headlines to the contrary.  To suggest otherwise is irresponsible and inaccurate.  There is still a long way to go to establish that people who walk on the streets of New York City, particularly young black and Hispanic males, have the constitutional right to be left alone and free from seizure and search at will by police.

Second, as I was unceremoniously reminded by  Sarah Steiner (and11 other CDLs hanging out in the counsel room at 100 Centre Street) after twitting about the decision yesterday, the injunction may remove a facile tool for police to seize and search in violation of the 4th Amendment, but that merely compels police to up their game to making up excuses to do so.  It does not mean they will start honoring the Constitution.

It’s a battle won, and given how few battles are won, worthy of some celebration. But the war continues, and that shouldn’t be forgotten.

As the Association of American Law Schools annual meeting concludes in New Orleans,  Orin Kerr reports back of an interesting panel called “Law Schools and Their Critics.”

The panel was moderated by Lauren Robel, the AALS President, and the panelists included Deborah Rhode of Stanford, Bill Henderson of Indiana, Gene Nichol of UNC, and Bryant Garth of Southwestern. This panel was only one of several at the AALS meeting on criticisms of law schools, and the panel was very well attended. My guess is that there were about 125-150 professors in the audience.

From time to time, commenters ask for concrete proposals to change law schools–especially to reduce tuition costs. Professors and regulators are starting to ask the same question: What should we do about the problems confronting legal education?

On one level, the answers are easy: Lower tuition, reduce JD class size, embrace full transparency, and educate students effectively for the current workplace. But achieving those goals will require both discussion and specifics.

To support that discussion, I’m launching a new website called  Law School Cafe. The site is a partner site to  Law School Transparency, and  Kyle McEntee (LST’s Executive Director) is my co-moderator. We hope to have  LawProf as a frequent contributor–and you’ll have to put up with me continuing to contribute here. There’s still a lot to criticize in legal education, even as we try to formulate some solutions.

Emily Zimmerman, an associate professor at Drexel’s Earle Mack School of Law, proposes that law professors should fill “continuing practice experience” requirements. In an SSRN paper, Zimmerman notes that “many of the people who are entrusted with preparing students for law practice are people who may not actually have practiced law, who may only have practiced law for a short amount of time . . . , or who may not have practiced law recently.” (p. 7) Zimmerman acknowledges that these professors may “do an excellent job of helping students develop some of the skills that they will need to be successful lawyers.” But is that enough? Shouldn’t law schools strive to give students the best possible education for their role as lawyers? To accomplish that, Zimmerman argues that full-time faculty should enjoy more regular connection to the world of practice.

Zimmerman suggests that professors devote 10-15 hours a year to “law practice.” To give professors more flexibility, and to allow more in-depth engagement, a “CPE” requirement might mandate 30-45 hours of practice every three years. The activities fulfilling this requirement could range from actual practice (for paying or pro bono clients) to shadowing active lawyers and participating in bar committee work. Professors without active licenses, including those without law degrees, could participate in some of the latter activities.

When New York County Acting Supreme Court Justice Edward McLaughlin sentenced two Testwell Lab executives, V. Reddy Kancharla and Vincent Barone, to seven and five years respectively, he meant to send a message :

As defendants point out, the trial court apparently felt that such sentences were warranted in order to “send a message” to “‘the construction industry in New York City [which] over the decades has been rife with corruption.’”

In three opinions running an astounding 299 pages,  thoughtfully parsed by former NYLJ reporter Dan Wise who now has his own blog, WiseLawNY, the First Department sent a message of its own:

In reversing the two men’s conviction for enterprise corruption in an opinion written by Justice James M. Catterson, four judges characterized the prosecution’s case as based upon “pure conjecture bolstered by empty rhetoric.”

The two were convicted of faking concrete tests used in huge construction projects.

Both men were convicted of manipulating data that skewed test results for concrete used at major New York City projects such as the construction of Yankee Stadium, the Freedom Tower, the Second Avenue subway line and Jet Blue facilities at JFK Airport. In all, the city ended up retesting concrete used in more than 100 projects over a decade.

And yet, in Justice Catterson’s final opinion as an appellate judge, having been defeated in the last election, he wrote:

Catterson also chastised the office for making “significant misrepresentations of the record” in its brief and at oral argument as it sought “to sidestep the absence of proof on the criminal enterprise issue.”

“Simply put,” Catterson wrote, “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communications between Kancharla, Barone and any of the Testwell employees in furtherance of the criminal enterprise.”

New York has a long tradition of issues with concrete and construction, going back as far as the Tweed Courthouse.  It could be well argued that not a significant structure in New York City was built without some element of corruption involved.  Indeed, to a large extent, it’s been institutionalized in union contracts in many cases, making it part of the essence of large construction projects whether anyone likes it or not. 

But what it does not necessarily mean is that enterprises engaged in construction are corrupt, or that the individuals running those enterprises hold clandestine meetings in the dark of night to scheme about how to rip off the City or landowners. 

The requirements of contracts for major construction projects are onerous, including testing of materials to assure that they meet the specifications.  The entities who build skyscrapers and stadiums and public buildings aren’t small mom and pop shops, but large decentralized corporations with various departments and many employees, all of which have jobs to do that are distinct from other people’s jobs. Ultimately, the job was to get a structure built, properly and on time.

Testwell Laboratories role was to perform the tests needed to show that materials met the requirements.

Testwell was considered the preeminent material testing laboratory in the New York area. Both public and private builders relied on its test reports and certifications about the strength of concrete and the quality of steel in structures built in the city. 

According to witnesses inside Testwell, a variety of tests weren’t done the way they were supposed to, and there doesn’t appear to be any question of that.  But prosecuting the little people, the ones who faked results or used unapproved methods to get their job done, isn’t satisfying. Instead, the District Attorney went to the top of Testwell, the CEO and Vice President of Engineering.  The problem is that there was no evidence that either knew about the testing problems, encourage or enabled the falsifications.

What happened here, as often happens in trying to climb the ladder of a corporate structure, is that otherwise ordinary or common facts, here the Testwell website and computer system, are reinvented rhetorically to appear nefarious, from which the prosecution can argue that it’s done for malevolent purposes.

While there was testimony that Testwell’s computer system did not allow one to determine who had altered data, there was no evidence of any kind that the computer system was purposefully programmed to “hide” data tampering or that Kancharla had any role in the programming. We agree with Kancharla that it is one thing to draw inferences from the facts and another thing for the People to simply invent facts…

A computer system that was created in a way that served to provide the proof in the fashion the prosecution desired or thought it should was magically converted into a mechanism to conceal.  Even more peculiar, the Testwell website, which was apparently out of date as are so many, offered another opportunity for rhetorical “proof”:

The People also assert that Testwell’s corporate titles and responsibilities were kept vague to “camouflage [its] crimes and blur responsibility for them.” The People contend that Edward Porter’s title “was published on Testwell’s website as assistant laboratory manager despite the fact that he had nothing to do with the lab.” However, the People put forth no evidence that any engineer doing business with Testwell was deceived by Porter’s title or that anyone even considered the issue.

The post-hoc effort to rationalize a job title by rhetorical flourish, “camouflage” and “blur,” doesn’t make it so, but rather demonstrates how taking otherwise innocent, indeed meaningless, facts and through the use of artful language taint them and elevate them to inferential proof of wrongdoing.

And the most absurd contention was the use of the word “we” in company correspondence, suggesting that it meant personal involvement by top management in every decision, only to later be used to argue a diffusion of responsibility.  That’s how corporate people write letters, to promote the brand and service, and not in anticipation of a prosecutor putting every word under a microscope years later. It’s just silly.

Justice Catterson’s opinion is remarkable for not only seeing through the trick the prosecution tried to played on the court, but for calling it out in no uncertain terms.  The extrapolation of utterly ordinary practice into part of a scheme to commit enterprise corruption by tainting innocent conduct with words to convey criminal purpose pervades the trial process.  It’s not the fact of what happened, but the characterization of conduct to give the appearance of wrongdoing even though a defendant did nothing wrong.

And Justice Catterson said so.  It’s about time that the court focused far harder on what actually happened than the words used to describe. 

In the New York Times, Lincoln Caplan raises the specter of an adverse ruling from the Supreme Court  in Missouri v. McNeely.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.

Mind you, the justification for someone sticking a needle in an arm is only tenuously connected with saving a life, since it does nothing to stop a drunk driver, but merely advances the collection of evidence of guilt after a stop has been made. The sole benefit is conviction, which arguably will result in a sentence that will arguably have a deterrent effect.  Whether that’s so is a matter of religion.

Yet, the State of Missouri believes this is important. So does the United States of America.

The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”

It’s not that there would be no evidence without blood draws. Indeed, there would be the same evidence that was used for decades before blood draws, the observations of cops and the testimony about the defendant’s conduct.  In the worst of situations, there would still be evidence.  It would just be less conclusive evidence, and open to meaningful cross-examination that could make the cop look unconvincing.  So the crux of the argument is that without warrantless blood draws, the government couldn’t be assured of a conviction and would have to take its chances using other evidence.

Caplan doesn’t argue that blood draws are unduly intrusive, or painful, or contrary to the defendant’s right against self-incrimination.  He argues that there is no need for warrantless blood draws, as there is no exigency:

The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.

One of the grand benefits of technology is that warrants are now only a phone call away.  The aspect of Caplan’s argument that is certainly accurate is that the cops can, and do, get warrants for blood draws on the fly all the time. The aspect that is problematic is that all this amounts to is adding a phone call to the mix, then drawing blood. Maybe in the hospital. Maybe on the hood of the cruiser. But either way, blood will be drawn.  Sure, it’s better to honor the warrant clause than ignore it, but blood will be drawn.

But there is a far, far worse problem lurking a mere foot or two down from the McNeely case.  Consider what happened to Stephan Cook in Sanpete County, Utah.

Cook claims the incident in question started on a quiet side road in Ephraim where he was parked smoking cigarettes inside a car with friends. Cook says police officers approached the car, suspecting the young men were smoking marijuana.

“When they approached us, they said it smelled like marijuana, but we said no, we’re smoking cigarettes and we just put the cigarettes out like you asked us to,” says Cook.

Cook refused to offer a urine sample after the cops demanded it numerous times.  He adds that he repeatedly asked for an attorney to be present.

While blood is drawn to test for alcohol, the test for marijuana requires a medium of a different color.

After obtaining what Cook’s attorneys call a “botched” search warrant, he was forced by police to be catheterized at Sanpete County Hospital. “The nurse told the officers to hold my shoulders while they cathetered me, and after that they took me straight to jail,” said Cook. 

As bad as a needle in an arm is, the involuntary insertion of a catheter is a rape. While it may be testosterone talking, it’s hard to imagine any man not fighting such an intrusion as hard as possible. I know I would.  Indeed, I would like to think that those who are vehemently against the rape of a woman would feel similarly about the insertion of a catheter, if they cared at all about men as they do about women. 

This is the slippery slope Missouri v. McNeely leads us on, and if you find that unimaginable, consider that Stephan Cook sued for the sexual assault perpetrated on him by Sanpete County police, and United States District Court  Judge David Nuffer dismissed the §1983 action, citing Cook’s plea in abeyance

According to Cook’s legal team, the federal judge dismissed his civil lawsuit partially due to the fact that Cook had previously admitted guilt. However, both Cook and his attorneys say the plea of abeyance was made under duress.   The attorneys, who plan to appeal, say the ruling to dismiss the case on those grounds is just plain wrong. “Irrespective of whether he committed this crime, that’s irrelevant to whether they’re entitled to forcibly catheterize him,” said attorney Justin Heideman.

In other words, even if Cook was toking away, they don’t get to force a catheter into his penis. Naturally, the police disagree.

Peter Stirba, defense counsel for the Sanpete County officers issued this statement in response to the dismissal of the lawsuit: “The officers’ behavior was fully justified and certainly was not violative of any of Mr. Cook’s constitutional rights.” 

After all, if they can’t collect urine, how can they conclusively prove Cook was smoking marijuana?  And if inserting things into our bodies to collect the most conclusive evidence possible doesn’t offend the Constitution, then what reason is there to distinguish between one body part and another?

While this might add a cynical component to the problem, it is of course possible that a catheter is forcibly inserted into a recalcitrant suspect’s penis and the urine seized does not prove the use of marijuana. Let’s say a defendant is disrespectful to a police officer, and the officer says to himself, this fellow would never behave so contemptuously of my authority unless he was high, thus explaining the need to ascertain, with as much certainty as possible, whether there are drugs coursing through his veins. And so a forcible catheter is the tube of choice.  And afterward, no drugs are found, and the police officer, whether with or without an apology, let’s the suspect go on his way, free of any judicial review.

And this is the potential future if the Supreme Court backs up the government, much like  it’s our past and present.

There is no one who flies who hasn’t heard the command to turn off their cellphone when the airplane leaves the gate.  The rationale was that cellphones would interfere with the plane’s sensitive navigation equipment and, perhaps, make the plane fall from the sky. Why this might happen was never clear, but it was the explanation for the rule, and the rule was clear. Turn it off or no one goes anywhere.

Thoughtful people noted that no plane has ever fallen from the sky because of the errant cellphone being left on.  Finally, the Federal Aviation Authority, the promulgator of the rule,  conceded that it didn’t have an actual basis for the rule, but preferred to play it safe by default. 

The rule was created in the early days of cellphones, when there was much concern about what their magic waves might do, and no one was quite sure whether it could cause a problem, and no one was willing to take the chance that it might cause a plane to fall from the sky.  Today, years and millions of cellphones later, it’s not as much of a mystery, particularly since pilots use iPads in the cockpit and still no plane has fallen.

Which presents a conundrum for Alois Vetter, a 45-year-old from Colorado who was  flying Southwest out of Indianapolis to Denver. 

An air traveler was arrested yesterday for refusing to turn off his cell phone prior to the departure of a Southwest Airlines flight from an Indiana airport, police report.

Alois Vetter, 45, was busted for disorderly conduct after allegedly ignoring repeated requests from crew members on the flight, which was headed to Denver from Indianapolis.

The plane’s captain, Ashley Woolman, told police that he taxied the Boeing 737 back to a gate around 7:30 AM and ordered Vetter to leave the plane. Vetter, who was traveling with his 15-year-old daughter, refused, according to an Indianapolis Airport Police Department report. He was then arrested by airport police.

Pictured in the adjacent mug shot, Vetter was booked into the Marion County jail on a misdemeanor charge. Vetter’s daughter was briefly placed in the care of child welfare officials until her father was released from custody.

Assuming Vetter did as they say, he violated the rule. His disorderly conduct is not for the offense of possession of a cellphone left in the “on” position, but refusing to turn it off upon command.  The law is remarkably protective of orders given on airplanes.  But where is the culpability of refusing to adhere to a rule that is now conceded to be baseless?  If the rationale is that cellphone will make planes fall from the sky, and the fact is that they won’t, then the rule is arbitrary and capricious. Refusing to adhere to an arbitrary and capricious rule doesn’t form the basis for an offense.

And yes, his mugshot makes him look like a bad guy. Everyone with a dark beard looks like a bad guy these days. Get over it.

Before reaching the legal issue, a few points are undeniable. First, as a result of his refusal and the reasonably anticipated reaction, a planeload of people were delayed and inconvenienced.  Each of them had something better to do than sit on the tarmac awaiting local police to come for Vetter.  Had this been an act of disobedience with some claim to societal virtue, maybe it could be argued that Vetter’s refusal, like Rosa Parks’ refusal to sit in the back of the bus, was worth enduring.  But this wasn’t Montgomery, and Vetter was no Rosa Parks. 

Even though the long-held explanation for turning off cellphones may be nonsense, another rationale, far more worthy, remains.  Talking on the cellphone is unbearably annoying to those around you in close quarters. No one cares enough about junior’s wart, those cute shoes or how deeply moved you were at Graceland to suffer listening to your insipid conversation. 

There is nothing important enough that you have to say to put others through that torment. If you are sitting within arm’s reach of me, I may feel an irresistible impulse to grab your cellphone and throw it as hard as I can against the bulkhead. Don’t make me do that. I’m not a violent person, but I might not be able to control myself.  Text all you want. Send emails if you must. But don’t chatter. Just don’t.

Yet this isn’t the rationale for commanding passengers to turn off their cellphone, though it should be.  So what becomes of a rubric when it loses its rationale?

We are generally a compliant society, doing as we are told for no better reason than someone has told us to do so.  It may be that it’s not worth the fight. It may be a matter of courtesy to our fellow passengers. Both are fair reasons to comply. Yet the individual who decides that he’s not going to be courteous that day, he’s not going to do as he’s told when there is no justification for doing so other than not make a ruckus. What is the moral basis to make him a criminal when his malum prohibitum wrong can no longer be justified?

While Vetter’s conduct was, in the grand scheme of fighting for freedom, foolish as it failed to serve the greater good, pissed off the other passengers who didn’t sign on for the fight, and won’t change any prohibition, it also fails to rise to the level of justifying imposition of criminal sanctions.  Until there is a change in FAA and air carrier rules that rationalizes policy with reality, this condition will persist.

So Vetter is a major jerk. That’s not a crime per se, and if it was, most of us would be criminals for something.  . 

The latest gimmick to make law school relevant is to recreate the third year curriculum so that students graduate with some basic skills in the practice of law.  While prawfs and deans swirl adjectives around their innovations, Eric Mayer at  Unwashed Advocate provides some hard core practical advice in Client Intake 101.

Here is the syllabus for the first four classes:

1. Introduction. Title: “No Kids, We Don’t Make This Shit Up”

2. What the hell is a “consultation?” How your definition is not the same as that of the potential client.

3. Practical Exercise: Controlling the initial consultation. Theme: It’s not for them; it’s for you.

4. Getting to the Bottom Line 1. Theme: Your mortgage cannot be paid in thank-you-so-much-for-your-time and you-gave-me-a-lot-to-think-about currency.

Read the rest, as it’s not only hysterically funny, but spot on accurate.  Coincidentally, Mark Bennett (who is a  guest-lecturer in Eric’s course based upon his expertise in dealing with nutjobs) posts about why some potential clients have extreme difficulty finding their perfect lawyer.

Finding a second lawyer to replace the first lawyer on a case is difficult and expensive—the second lawyer, if she is at all competent, is going to look closely both at what the first lawyer did (to determine what was screwed up, and whether it can be fixed) and why the client and the first lawyer parted ways (to determine if there is something wrong with the case or with the client).

Finding a lawyer to replace a pro se party on a case is even more difficult and expensive—the pro se has, almost by definition, screwed up the case; and there is likely something wrong with both case and client that no lawyer took it the case in the first place. While not every pro se lawsuit is filed by a madman, enough of them are that pro se filing might raise a reasonable presumption of madness. “Mad” doesn’t mean “wrong,” but lawyers often will decline to invite more madness into their lives, even for a case that is a potential winner.

In the case at hand, Bennett notes that the pro se complaint (primarily against the TSA) not only covers the party who perpetrated the alleged wrong, but

Defendant Mary Frances Prevost (hereinafter “PREVOST”) was Plaintiff’s second criminal attorney. Plaintiff appreciates the fact that the criminal charges were finally dismissed and gives credit to PREVOST for helping to see that accomplished. Plaintiff is suing PREVOST at this time, however, for her unethical practices and for her failure to comply with Court orders. Plaintiff is willing to remove PREVOST as a defendant if she will apologize for her wrongs and simply speak honestly with Plaintiff so Plaintiff can properly prepare for her Federal lawsuit trial.

Mary Frances Prevost, by the way, was the lawyer who won the criminal case. Apparently, a simple thank you wasn’t enough.  So who wants to hop on this case?

What are the chances that the lessons Eric and Mark offer will find their way into some law school’s third-year curriculum?  By show of hands, how many lawprofs and deans are suitably versed in solo or small firm practice?  How many read either of these posts so they would have a clue? Never mind. We know the answer.

But wait, you say.  There are always adjuncts, real lawyers offering real world experience in the practice of law, to mold these minds of blob into practicing lawyers.  Well, that’s true. But based upon my highly scientific empirical analysis of law students, there is a problem.

By my estimates, about 60% of the students will be capable of accepting that real life isn’t unicorns and rainbows. They will understand that the law deals with real people, from the wonderful to the venal, the thoughtful to the batty.  That leaves 40% who will prove themselves not merely incapable of embracing life as it exists in the trenches, but offended by it.  How dare these nasty trench lawyers say mean things about clients, judges, Avvo, technology and each other.  They are passionate.  They are certain. They are a danger to themselves and others.  And they can’t bear to hear it.



Forty percent of law students being taught the practice of law are now crying, preparing their list of things that offend their sensibilities and running to the administration to demand that their world be cleansed of the nastiness of reality so they can graduate without ever hearing words that make their delicate ears hurt.

And they won’t like this post much either.

At Above The Law, fellow curmudgeon turned Anglophile, Mark Herrmann, raises the inside baseball problem of who feeds appellate judges the bench memos upon which they rely in familiarizing themselves with a case before them.

Back when God was young, I clerked for a federal appellate judge. I saw how things operated in my circuit, and my friends clerking elsewhere told me how things worked in other circuits. One operating procedure differed between circuits; the procedure affected litigants (without their knowledge), and one system was plainly better than the other.

Back in 1983, at least, some circuits asked clerks to prepare only a single bench memo for the entire three-judge appellate panel. That is: A three-judge appellate panel learned that it would be hearing, say, 21 cases on the May docket. The clerks in the three chambers then negotiated among themselves to decide which chambers would take the lead preparing the bench memo for each case.

Before argument, the chambers would swap bench memos. In a circuit that worked this way, we would ship my bench memos about the Juliet and Romeo cases off to the other chambers, and we would receive in return their bench memos about the Ariel and Caliban cases they’d been assigned. All of the judges read only my bench memo about my cases, and all of the judges read only the other guy’s bench memo about his cases: One bench memo for the entire appellate panel.

The alternative procedure was that each judge would have his clerks prepare bench memos for each case, so that each of the three judges on a panel would have three different bench memos as prepped by their own clerks. The practice of one bench memo per case persists in some circuits today.

Mark is certainly correct in his complaint, that feeding all judges on a panel one memo, so that there is no diversity of views and the judge is left with the quality of comprehension of a clerk selected by someone else, is the least beneficial practice.  And thus, three judges with three bench memos prepared by their own chambers is better than one.

But that’s not likely much comfort to most of us.

When preparing an appellate brief, an enormous amount of thought and effort goes into every aspect of the argument.  It may be highly nuanced, requiring both a deep understanding of law and practice, as well as an appreciation of humanity and the ugly reality in which it exists.  Every word is parsed for precision. Every sentence vetted for tone. Every aspect of the brief undergoes scrutiny over and over, to be sure that it expresses the argument as clearly and persuasively as possible. 

And then, it’s butchered in the hands of some snot-nosed kid whose greatest achievement was being a law review editor, who has never experienced life and who is far more concerned about bluebook citations than how much a child will suffer for adherence to a beloved rubric. 

The underlying chambers explanation is that appellate judges are too busy to do their own work, such as reading briefs. After all, they have articles to write, speeches to practice and the occasional snarky retorts to Supreme Court judges who don’t care for their book reviews.  Then there’s time needed for looking at pictures on the computer. Who could possibly fit brief-reading into this busy schedule?

Plus, they get a gaggle of baby lawyers, fresh-faced and desperate to let their important opinions be known, who can brief cases like no get-out, explaining their law school GPA and authority to pass judgment on lawprof articles.  These are smart people, even if only book smart.  Certainly they can reduce a 50 page appellate brief into a few salient sentences, and it would be shame to waste them.

Of course it’s better to have a panel with bench memos reflecting three takes rather than one.  When the judges are working off one kid’s rewrite, his bias and naivete infects the panel.  Bear in mind these are appellate judges, who are unlikely to have any personal experience at the far counsel table and may have never tried a case, either as advocate or jurist, in their lives. Chances are even better that they never held the hand of a sobbing mother or child; you don’t get many of them when representing Fortune 100 companies.  And so, the significance of the bench memo is magnified. Greatly magnified.

In those circuits where the judges feel so horribly overburdened by their workload that they not only can’t take a few minutes to read the pages that took a lawyer a hundred hours to prepare, the least they can do is consider more than one wholly inexperienced view of the case.  The very least, as this falls far short of anything remotely resembling a fair hearing and understanding of the case.  To be so incomprehensibly lazy as to rely on one kid’s work reflects utter disrespect for the lawyers and the lives of the people who mistakenly believe that meaningful review exists.

Granted, the use of clerks to prepare bench memos is a time-honored tradition, and the clerks who do so believe their work is excellent and fair.  And perhaps it is, at times. But the depth of understanding and experience they lack prevents them from appreciating where they fall short, miss ideas, mischaracterize points and fail to appreciate what is obvious to any experienced lawyer.

And given how much stock we all put into appellate decisions, their precedential value and the affect they can have on so many lives, it’s just not good enough to leave it in the hands of children,  Certainly not one.  Not even three.  And if judges are too busy to do their core job, then they shouldn’t wear robes.  And now you know the dirty, little circuit secret.

While his op-ed in the New York Times didn’t go very well, Case Western Reserve Law School Dean Lawrence Mitchell wasn’t to be denied.  Maybe a bit of live explanation would help?  So Bloomberg Law’s Lee Pacchia interviewed the good dean.



While there is so much worthy of discussion packed into those incredibly monotonous 15 minutes of your life lost, the foremost takeaway is the good dean’s assertion that one of the core problems perceived by lesser minds may not, in fact, be real.

Paul Carron at  TaxProf noted:

The U.S. Bureau of Labor Statistics projects there will be 74,000 new lawyer jobs this decade, while American law schools will produce more than 400,000 graduates.

With so many legal needs of the poor going unmet, “finding different paths for people who truly want to be lawyers opens up all sorts of possibilities” for law graduates to find jobs, he maintains.

I really don’t even know where to start. I fall on the optimistic end of the spectrum when looking at the law school disaster and I can’t even begin to understand or justify Dean Mitchell’s statement. Flat out, full stop, there is an oversupply of lawyers. To even begin to claim otherwise, especially when you’re a law school dean with intimate knowledge of the industry, is lying.

Not being disingenuous, or mistaken, or having a difference of opinion. L-Y-I-N-G.

There was no reason lawyers couldn’t issue press releases before the internet. The problem then was that no one cared, and so their press releases never saw the light of day. Let’s face it, there wasn’t much a lawyer had to say that was worthy of print space.

But now that the internet has provided infinite room, lawyers can use the marketing tool with abandon and hope that someone notices. Fort Lauderdale criminal defense lawyer Gary Ostrow did, and abandoned any hope of coming out of it unscathed.

SOURCE: Gary Ostrow Criminal Defense Attorney

Gary Ostrow Lawyer Announces He Is Taking on All Celebrity Criminal Cases in Florida

FORT LAUDERDALE, FL–(Marketwire – Dec 21, 2012) – Criminal Defense Attorney Gary Ostrow has recently announced his intention to take on all celebrity criminal cases in the state of Florida, effective immediately. Recognizing that star-studded actors and athletes often face an unfair bias in the courtroom, Ostrow a Fort Lauderdale, Florida lawyer seeks to acquit any and all celebrities wrongfully charged of serious crimes.

He wanted to be noticed, and it worked. South Florida Lawyers noticed.  Mark Bennett noticed. Some of his local brethren noticed. I did too. What was noticed was that Gary Ostrow marked himself as a social media goofball. While the question of who came up with this idiotic idea, and who actually executed it, remains unanswered, there is no question about who will pay for it: Gary Ostrow.

And as long as Ostrow decided to scream “look at me” at the top of his lungs, people are reminiscing about Ostrow’s other, older, faux pas, like his aborted run as a Republican for Broward County Public Defender, cut short after his  arrest for cocaine possession as he tried to enter an airport. That he had a drug problem isn’t the sort of thing that most of us would raise against a fellow, but when you put out a press release like this, everything becomes fair game.

Bennett has already deciphered the secret hidden message of this marketing bonanza:

Celebrities generally choose the lawyers their agents or managers recommend, and agents and managers, while they often choose unwisely, aren’t likely to choose a lawyer based on a self-serving press release.

Ostrow knows, though, that there is a special class of potential clients who want to believe their cases are high-profile, because they want them to be high-profile. These potential clients want to be celebrities, because they believe that celebrities get the best of everything.
We call these potential clients “narcissists.”

And if these narcissists have the money to pay for representation, then they get it just like celebrities. It’s been my experience, however, based on the thousands of telephone calls I’ve received via Avvo, that there is a huge number of shoplifters, genital exposers, public pee-ers and drunk drivers who fancy themselves celebrities but lack the wherewithal to pay for a lawyer. They are likely able to pay, but don’t feel any particular inclination to do so. Their gift is to allow a lawyer to bask in their reflected, if somewhat dim, celebrity.

Unlike phony claims of greatness, such as  America’s Leading Trial Lawyer and Ranked #1 of 94,377 Law Firms in New York, Ostrow’s cry for attention isn’t exactly false. No doubt he would be quite happy to take on “all celebrity criminal cases in the state of Florida, effective immediately.” He probably would have been happy to do so even before the press release, despite the “effective immediately” language. But ridiculous puffery isn’t the only way a lawyer can bring ridicule upon himself.  Indeed, there is probably no limit to the ways to make oneself a joke on the internet.

Ironically, Gary Ostrow promoted his “notoriety” (his word) in his press release, and notoriety is what he got. Perhaps he bought into the  marketeer’s mantra, “you are what Google says you are,” and sought to manufacture an online persona as the defense lawyer to the stars. Perhaps he just wanted to snag a few nobodies who suffered from narcissistic delusions. Perhaps his practice is dying and, in a moment of desperation, handed over his reputation and ethics to a “social media professional” who came up with the brain storm of issuing this press release.

It’s not going to work. Indeed, it’s already backfired, as Ostrow’s foray into celebrity representation availability has brought some attention to him that will not only make people think he’s not really a celebrity lawyer, but a total buffoon. And the attention is likely to show up higher in a Google search of his name than his press release. I suspect this wasn’t what he was aiming for when he closed his eyes and pulled the trigger.

The message here isn’t that Gary Ostrow is a sucky criminal defense lawyer. Whether or not that’s so is beyond my pay grade, and I leave it to others with actual knowledge of his skills to make that assessment. The message is that the internet offers infinite opportunity to make desperate lawyers into total asses, and provide other lawyers with the means to call them out on it.

Gary Ostrow isn’t the first lawyer to pretend to be something he’s not on the internet, and isn’t the first lawyer to have his cover blown. It’s not that the internet doesn’t provide ample opportunity to screw up. It most assuredly does. It’s that most lawyers aren’t so fundamentally narcissistic and, well, stupid, as to walk down the boulevard in hotpants screaming look at me, look at me, and think nobody will say anything.

There are a few of us who will say something, and it won’t be flattering. Don’t sell your dignity and integrity so cheaply. Chances are far greater that it will backfire than make you something you’re not. If you’ve got an important announcement to make, there is an internet on which to do it. Don’t be surprised, however, if it doesn’t go exactly as planned.

Among the many and varied excuses that usually defy response, “I forgot” is usually the best.  After all, it’s an admission of wrongdoing without any moral culpability. People forget things. It happens. It’s the nature of the beast, right?

Except when what was forgotten was five teenagers left locked in a police van for 15 hours in the freezing cold.  Via NorthJersey.com :

One of the five teenagers locked inside a police van for about 15 hours without food or water in March 2011 is suing the borough, the Police Department and more than a dozen officers.

According to the complaint, [Adam] Kim, then 17, was one of about a dozen minors transported to police headquarters after officers broke up a loud house party on Arcadian Way in March 2011. The minors were not advised of their Miranda rights or told why they were being arrested, the complaint stated.

The plaintiff alleges that the officers “displayed a pattern of racial bias and/or indifference” by using a racial slur to reference Asian-Americans.

The cops claim that there was no racial animus.  They just forgot that they had put the five teens in the van. Oops.  And Internal Affairs agreed.

But the internal-affairs investigation found no evidence of “malicious or discriminatory intent” by the officers, the head of the department’s internal-affairs unit wrote in his findings.

Somehow, it must have slipped through the crack investigator’s fingers that not only were the teens left in the van in the first place, but remained there, without food, water or toilet facilities, and after having their cellphones seized, while cops returned to the van and went for a ride.

Upon arriving at police headquarters, some of the teens were led inside the building. The remaining handful — mostly of Asian descent, and all of whom had their cellphones confiscated — were kept locked in the van and weren’t acknowledged when two officers returned to the vehicle later to respond to a couple of calls before they took the van back to police headquarters, the suit said.

Not until 3 p.m.. the next day, when some passers-by noticed the teens in the van and called the police, were they let out of the van.

Not to attribute excessive insight or attentiveness to the Ft. Lee police, but the idea that they simply forgot about the five teens held inside the van is utter nonsense. They were teaching these kids a lesson, cop-style, and there is no way they forgot about them.  None.

Whether this reflects racial bias against Asians, or perhaps something about rowdy boys, isn’t clear.  That cops used a racial slur doesn’t necessarily prove the point, as most hate all citizens and merely slip unconsciously into the use of slurs without putting enough thought into it to make it count.  That’s not a good thing, by the way, and reflects the hostility toward all citizens that cops seem to show when serving and protecting.

But regardless of their motivations, this is something that police can neither do, nor excuse.  These were teenagers.  So they were too loud at a house party?  Read them the riot act and remind them that their conduct impacts others.  Not tough enough?  Then arrest them lawfully for disturbing whoever. But under no circumstances do you execute sentence by leaving them locked in a van. 

And claiming that they were merely forgotten is utter baloney. compounding the wrong of doing so with the wrong of lying about it.  This time, “I forgot” won’t work, and the fact that the Ft. Lee Internal Affairs put its seal of approval on this obvious lie adds to the disgrace.

H/T FitzMuffKnuckle