Ever see the guy who tries to sneak his half-eaten chip into the onion dip when he thinks no one is watching? Disgusting, right?  And not just because of the sores around his mouth. At best, it’s poor form. At worst, it’s repulsive. And it’s no better when it happens in the law.

When wealthy businessman Christopher Comins tried to shut poor blogger Matthew VanVoorhis down with a SLAPP suit the first time, everybody was watching.

So what does a shooter do when he’s caught on video and properly castigated everywhere?  He sues a blogger.

Matthew Frederick VanVoorhis has a blog called Public Intellectual, where he posted about Comins’ dog-shooting.  The title is Christopher Comins: Barbarian Hillbilly Dog-Assassin (w/Friends in High places). My guess is that Comins objected to being called a Hillbilly.  I bet Hillbillies objected to being associated with Comins.

The post is harsh.  Then again, trying to murder dogs, especially when the owner is screaming to stop and you’re close enough to see the collar around their necks, deserves some harsh words.  But Comins is a businessman.  He’s got both the wherewithal and motivation to make somebody pay for his getting caught.

The article itself was exceptionally mediocre.  Its point, that law school doesn’t teach students how to be lawyers, is old news. Its examples, an article from some philosophy journal, students who couldn’t do a megamerger on day one of practice, completely missed the boat and hardly proved the point.

But put an article slamming law school on the front page of the  New York Times and everybody throws a hissy fit. 

Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design.

Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

I don’t know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.

Not quite the orthodoxy, but not quite a traitor to the Academy. Well played.  And lest you think that only scholars’ panties were in a bunch, so too were the  friends of fishwives who saw this as an attack on their business model of teaching skill-challenged new lawyers how to deceptively market themselves to effectively scam the public and accomplish their chief task coming out of law school, to make a buck at any cost.

To the extent that Segal’s article struck a chord (or cut one, as they case may be), it’s nothing that we haven’t known for a very long time.  It was a crappy article about a significant problem, leaving tons of reasons to criticize it, but one reason to embrace it.  It’s failing.  It’s failing to produce lawyers who leave with the knowledge and ability they’ve paid for. It’s failing to produce lawyers who can be entrusted with the lives of other people, despite their ability to recite Kant.

Segal’s article gave law professors the opportunity to circle the wagons and engage in group denial, and they seized it.  So the “chin-stroking” example of “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory” was wrongly attributed to a law review than philosophy rag? Fair enough. So explain  Harry Potter and the Half-Crazed Bureaucracy , 104 Mich. L.R. 1523 (2006)? So Segal used a bad example. That doesn’t mean he was wrong.

While the clients of Biglaw aren’t necessarily inclined to pay for the education of young’uns, the point that no every student emerges from school to warm a library chair in some megafirm can’t be summarily ignored.  This leaves them exposed to the schemes of the unscrupulous, who fill their heads with images of sugar plum marketing fairies while they wouldn’t know what a motion looks like if it slapped them upside the head.  Why not just pepper spray your students, or worse still, the poor clients they mislead with their vague representations of “passion” in lieu of competence. No excuses are going to serve as substitute for the ability to represent clients.

Here’s the bottom line, what judges, lawyers, students have been screaming at you but hasn’t managed to be heard by heads too filled with scholarly self-importance.  You aren’t producing lawyers.

And for my good buddy, Orin, with my deep concern for the pain he could suffer on his fence, let me offer a question that might help him figure out where to draw the line:

How long must a man’s legs be?

As day follows night, explanation follows outrage. And the pepper spraying of students brought UC David Police Chief Annette Spicuzza to the podium. 

Spicuzza said Friday that about 35 officers from UC Davis and other UC campuses as well as the city of Davis responded to the protest about 4 p.m., wearing protective gear.

Spicuzza said officers were forced to use pepper spray when students surrounded them. They used a sweeping motion on the group, per procedure, to avoid injury, she said.

“There was no way out of that circle,” Spicuzza said Friday. “They were cutting the officers off from their support. It’s a very volatile situation.”

I’ve been to Family Court a few times over the years, but it was never a place where I felt at home.  Everything about it felt wrong, from the essential absence of anything remotely resembling rights, to the way everyone in the room talked down to children as if they existed so every adult in the room could lecture them.  The one aspect of Family Court that I never gave much thought was that the courtrooms were closed.

Closed courtrooms in criminal court are bad, where the  constitutional right to a public trial is violated by the secret happenings behind closed doors.  The only time they were allowed to throw everybody out and close the courtroom was when the undercover took the stand, and then only when he remained active and could articulate a threat, either to him or his assignment.  When the prosecutor asked that the courtroom be closed, we fought it. No star chamber would be allowed without a fight.

Somehow, this never translated to Family Court. I never gave it any thought, as it seemed appropriate when the subject was children that their identities not be made public, that their future not be burned for something that happened when they thought like a child.  I was wrong.

In an investigation in the New York Times, a reporter tried to enter Family Court courtrooms.  Apparently, the Chief Judge of the Court of Appeals at the time, Judith Kaye, had ordered that they be open to the public.

New York State’s Family Courts were ordered to be opened to the public with much fanfare in 1997, supposedly allowing anyone to witness the cases of domestic violence, foster care and child neglect that inch through by the hundreds of thousands every year. But now, 14 years later, the Family Courts remain essentially, almost defiantly, closed to the general public.

What’s striking about this that we’re talking about courtrooms, the physical situs of law and people, where the groundlings are held accountable for what the law, as manifested by robed judges sitting on elevated benches.  This is the one place, more so than any other place, where adherence to the rule of law should be honored.  And it was just completely, inexplicably, ignored.

Some courtrooms were locked, and many were marked with “stop” and “do not enter” signs. Court officers stationed at courtroom doors repeatedly barred a visitor, sometimes with sarcasm or ridicule, frequently demanding to know who he was and what he was doing. Armed court officers at times appeared so rattled by a visitor’s efforts to enter courtrooms that, in several instances, a group of them nervously confronted the visitor, their holsters in easy reach.

On the fifth floor of Family Court in Downtown Brooklyn, where people waited in bleak assembly areas for their cases to be called, an officer was asked whether a member of the public could attend — as is permitted in other New York courts. “Not allowed, not in Family Court,” he said flatly. Outside Judge Susan Larabee’s courtroom in Manhattan Family Court, an officer flashed his badge and said disdainfully, “You don’t just walk in.” In Staten Island Family Court, three officers challenged a visitor even as they stood beneath a sign that took official note of the 1997 rule:

“The court is open to the public.”

That I took for granted that these courtrooms were special, somehow distinct from all other courtrooms, reminds me of how easy it is to mindlessly adopt the norm, the culture, without questioning whether it’s proper and right.  Without giving it a second thought, I would have said that Family Court isn’t open to the public, because that’s how it’s always been done. 

I suspect that the court officers, blocking doorways and questioning the reporter who was trying to gain entry to a place he had every right in the world to be, similarly never thought there was any chance they were wrong.  That’s how Family Court was always run, and anyone who suggested otherwise was either insane or a moron.  Turns out they were the fools. Just like me.

Imagine if the reporter refused to identify himself, show his press pass, push his way into the courtroom, through the armed officer who told him he couldn’t go in.  It would have gotten ugly, and there would be blood on the tracks.  The court officers wouldn’t have had the slightest reservation stopping the reporter, physically, to keep him out of the courtroom.  And the reporter, well aware of his right to be inside, would have still felt the pain of cuffs being tightened around his wrists.

Judge Kaye went her order to the judges who administer the courthouse, and no doubt they sent the memo around to all the chambers and courtrooms in their building.  If they read it, they forgot.  Then they went back to doing what they always do, keeping people out of the room because that’s what they do in Family Court.  This article is quite embarrassing to judges, whose lectures on the law are repeated a hundred times a day to recalcitrant kids with faces showing their disdain for authority, or their fear and humiliation when they recognize that their joke went too far.

And now those judges look like they are clueless. Or just as disdainful as the children they lecture. 

On Thursday, Edwina G. Richardson-Mendelson, the administrative judge of the New York City Family Courts, was told of the many blocked attempts to enter courtrooms. She said she was troubled to hear that courts around the city had not been open and said she planned a review. It was an opinion echoed by several other court officials apprised of the reporter’s efforts.

“We don’t have policies or rules for them to be ignored,” Judge Richardson-Mendelson said. “We’re a court of law, and law matters.”

Troubled?  You bet, but nothing close to an explanation for how this happened.  And how this happened under her watch.  And how this happened in a building filled with judges, all of whom are supposed to not only know the law, but adhere to it.

Courtrooms can still be closed when a judge makes an individualized finding that it’s needed, but there was no reason to even consider need when the rule was that nobody was allowed to enter a courtroom in Family Court.  And that means that for all these years, nobody really knew what happened behind those closed doors.  But we do know, now at least, that things happening behind closed doors to children in Luzerne County, Pennsylvania were a travesty, and went on until maybe 6500 children were lost.

The doors of courtrooms, all courtrooms, should be open, as should the minds of all lawyers who may take the culture of closure for granted.  I’ve learned my lesson.

Watching Lt. John Pike of the UC Davis police calmly walk down a row of young people and, with the nonchalance of sociopath, spray them with noxious pepper spray, a point must be made.  This post is for any cop who stumbles over here and reads it. This is a personal note from me to you.

Take a look at these kids, these people you’re hurting.  Some are war vets, the very same people you think so well of and you support. Many of you were in the military, and you stood beside these guys in far away places. They were your brothers then, and yet now they’re some other animal, some inconsequential creature.

Some are your neighbors, the ones who helped push your car out of the snow bank.  They’re the waitress who served you a coffee, and you gave her a nice tip because she made sure your cup was never empty. 

But these young people sprays by John Pike are your kids. They’re the children on the little league team you coached.  You clapped for them when they got a hit, or caught a pop fly.  You taught them how to block out the sun so they could see the ball coming.  You showed them how to plant their front foot so they could put their weight into the swing. Remember those kids?  Remember how proud you were of them when they won the game?  Even when the lost? These are the same kids.

These aren’t the mutts and skels, the street toughs and the ones you always knew would get into trouble.  Not that the human beings you decide are unworthy deserve your disdain, or to suffer your anger and physical abuse because they fit into that category in your head of things to be taught a lesson.  But we both know that there’s nothing anyone could say, especially someone like me, to convince you not to teach the people you hate a damn good lesson.

But these aren’t those people.  These are the people you welcome into your home.  These are the people you would let your child date, when you slip them the $20 so they can get popcorn at the movie.

You are pepper spraying the kids from your baseball team.

If you knew his name was Sam, could you spray him?  Would you let the other guy on your detail spray him?  Wouldn’t you say, “wait, that’s Sam. He’s okay,” and put your arm out to stop your brother cop?  If you saw him bring his baton back to split Sam’s head open, you wouldn’t let it happen. You know Sam. You know he’s the same Sam who cried when he skinned his left leg sliding into first, and you held him, you put some cream on his leg and wiped his tears.

And now you’re about to split Sam’s head open?  So what if you don’t think Sam’s politics are right.  So what if you think this whole Occupy thing is stupid.  Maybe it is.  You never asked Sam’s dad whether he voted Republican when he pushed your car out of the snow bank. You appreciated the hand, as you would offer to any neighbor.  It didn’t matter whether who he voted for.  He was a guy helping another guy out of a jam.  That’s what neighbors do for each other. That’s what people do for each other.

If you were on your day off, wearing civvies, would you take a baseball bat and hit a kid?  Would you even consider it?  It’ crazy, right?  And yet these are the very same kids you would never consider hurting. But there’s something about putting on the uniform, especially the riot gear, and it changes your view of everything.

Outsiders, guys like me, don’t get it.  We think you feel empowered, full of your authority and entitled to smack down anyone who doesn’t do as you say.  But you know that it’s not power, but responsibility. You now have a responsibility to keep order, to make people do as you tell them because you are what stands between order and chaos. You believe this. All they have to do to avoid getting hurt is follow your orders. It’s so easy. Just do what you say and they go home safe that night.  Just like you.

We can disagree about whether this compulsive belief that you need to maintain order is as important as you feel it is.  Many people will chastise me for not screaming about how you’re evil, vicious, using your authority as an excuse to vent your own anger and frustration. How you are just having some sadistic orgy of violence when you hurt a kid. 

But I’ve talked to you, face to face. We’ve had a cup of coffee, and you’ve told me that this isn’t who you are.  You’ve told me how I can’t understand what motivates you, how you have a duty that no one but another cop can understand.  I listened. I heard you. No, I don’t agree with you. I argued with you. I explained that your need for order isn’t worth splitting open some kids head. I reminded you that your daughter will walk down a street one day and some other cop will look at her and see her as someone who threatens his world.

It’s hard to remember this, to think of it this way, when you’re on a detail with orders not to let these people get in your way. You’re told to clean them out, and that’s what you’re going to do. You tell them what to do, and you expect them to obey you, and you have the club to make them.  Yes, you have all the tools, all the weapons, to make them pay with hurt for their insolence. You can make them hurt.

But they are still the kids on your baseball team.  That’s who you are spraying, hitting, pushing, throwing to the ground.  They didn’t hurt you. They won’t hit you back. These aren’t people you need to fear, people who might stop you from going home tonight to have dinner with your own children.  These are your children.

Don’t hurt these children.  Don’t hurt these people. The chaos will end and order will return on its own. No one has to be hurt.  Don’t beat the kids on your baseball team.

Update: From this comment, the  Boing Boing interview of one of the students undermines my basic idea here, that by seeing their targets as human beings rather than something less, some part of the their brain will register so that the cops, not being sociopaths, will not inflinct mindless harm.

W. tells Boing Boing that Pike sprayed them at close range with military-grade pepper spray, in a punitive manner. Pike knew the students by name from Thursday night when they “occupied” a campus plaza. The students offered Pike food and coffee and chatted with him and other officers while setting up tents. On Friday, UC Davis chancellor Linda Katehi told students they had to remove their #OWS tents for unspecified “health and safety” reasons.

“Move or we’re going to shoot you,” Pike is reported to have yelled at one student right before delivering pepper spray. Then, turning to his fellow officers and brandishing the can in the air, “Don’t worry, I’m going to spray these kids down.”

The still image that everyone must see.

And the video that goes with it.

Just as you feel the bile rising in your throat because another lawyer proclaims himself the best thing since sliced bread on the internet, something comes along to make you laugh.  Meet AppellateSquawk, another anonymous PD blawg that reminds us that misery loves company.

Who is this n00b?

Law was Squawk’s second choice in life. Our first choice was anything else.

Squawk attended the Acme School of Law & Refrigerator Repair and graduated number 398 in a class of 400 after calling the Property professor a horse’s ass. The professor predicted that our sense of outrage would make us a wonderful advocate and flunked us out.

Did he say refrigerator repair? I like him already.  And already, he’s been kicked off some of the most self-important blogs around.

The other day, the blogversation turned to Perry v. New Hampshire, which is about whether the DA can use a dodgy eyewitness identification so long as it wasn’t “police-arranged.” “Police-arranged” means the cops throw your client in handcuffs against the patrol car and tell the hysterical witness, “We’ve caught the scumbag.”

We had a few thoughts, having noticed that all those funky old Supreme Court cases from back in the ’70′s never said that the purpose of precluding suggestive i.d.’s is to slap the police on the wrist. They were worried about convicting the wrong person. Even before DNA exonerations and eyewitness experiments where nobody notices a gorilla walking into the classroom, at least some judges knew that one person can be mistaken for another pretty easily.

So if the i.d. is so unreliable that it risks getting the wrong person convicted, the DA shouldn’t be allowed to use it, no matter where it came from.

We thought we’d share this with the luminaries of SCOTUSblog, since nobody else had made this particular point. And darned if we didn’t get a prissy e-mail back saying they were giving our comment the heave-ho because “the author didn’t use their real name” [sic sic sic].

And he shares some similar ideas about the greater glory of harmless error.

Of all the professions claiming to be based on reason rather than revelation, only law makes a positive virtue of refusing to correct its own mistakes. We love it when an appellate decision recites a string of outrageous trial errors but finds them all harmless because the defendant was guilty anyway. As if only innocent people should get a fair trial.

What if doctors were like that? “Okay, so we cut off the wrong leg. But it’s clearly harmless because you’d be one-legged even if we’d cut off the right one.”

I know, I love unidexter jokes too!  With all this, he still has a soft spot for safety of those who have dedicated their lives to protecting and serving.

One of our appeals involved a cop who punched a man in the head for refusing to explain why he was walking through the lobby of his own building. Guess who was convicted of assault causing physical injury? The tenant, of course. His head had caused the cop to sprain his wrist.

So pity the poor NYPD cops getting hurt while arresting peaceful Occupy Wall St. demonstrators last night. Did they get blisters from wielding their clubs, or breathe their own pepper spray? Or get tangled up in those plastic handcuffs that they carry by the bundle in gleeful anticipation of making lots and lots of arrests, not to mention overtime pay?

Just when you think that there won’t be another new blawger with half a brain and a sense of humor, with nothing to sell and no marketing scheme up their sleeve, somebody comes along to bring a smile to your face and something worth the few minutes it takes to read. 

AppellateSquawk just destroyed my newly discovered world view that the blawgosphere is dead and we’re all doomed to watch Larry Bodine webinars.  That his failure to link to anybody and let us know he existed is a testament to his public defender-y lack of interest in self-promotion, selfish though it may be. 

Note to good blawgers: Would you be kind enough to let us know you exist without making us work so hard to find you? Trust me, the crap ones are on us hourly for a link exchange. Thank you. 

In any event, I welcome Squawk, now that Dennis Murphy told me he existed, to the blawgosphere, late perhaps but at least not never. I just hope he’s not a girl, or I’ve wasted a ton of male pronouns.

Some loose yet interesting stuff that I came across recently during a long stroll around the internet that never made it into a post of its own.

A Smashing Good Time

The Appellate Division,4th Department, held in  Franklin Corp v. Prahler that the owner of a collector car damaged by the negligence of another was no longer limited to the lesser of the reasonable cost of repairs or the reduction in market value.

Plaintiff was the owner of a 2000 Ford GT (hereafter, GT). On May 28, 2005, the GT was parked on the east side of Franklin Street in the City of Buffalo. According to plaintiff, the GT “is a rare collector’s sports car rapidly appreciating in value.” On the day in question, Justin M. Prahler (defendant) was driving a 1997 Jeep Cherokee and had consumed several alcoholic beverages. He was legally intoxicated when he struck and damaged the GT.

There’s nothing the owner of a collector car fears more than having his baby hit, whether by drunk, distracted SUV owner or loving fan who just wanted a closer look at 67 miles per hour.  But it’s still a car, and it needs to feel road beneath its tires.  Anytime you put a car on the road, the potential for disaster exists, though prohibitions against driving like a blithering fool are supposed to bring some small comfort.

For those unaware, the cost of insurance for a classic car is pennies compared to your minivan. That’s because classic car owners are actuarially recognized to take exceptional precautions to protect their vehicles.  But that doesn’t mean bad things won’t happen, not of their doing. So what happens when some collector car (say, a 1964 Austin Healey 3000 Mark III, Series II, BJ8) gets smashed?



Unlike a K-car, an exotic or classic car isn’t quite returned to its status quo ante by repair. Originality is highly prized, and a significant part of the intrinsic value of a classic car.  When some drunk smashes into it, the loss in value is far greater than the cost of repairs, and there’s no logic to precluding the plaintiff to recovering both the cost of repairs as well as the diminution of value.  About time a court recognized it.

Cowardice, The Next Big Thing In Legal Marketing

Is nothing sacred? For years,  Brian Tannebaum has made a nuisance of himself harping on the evils unethical behavior and deceptive legal marketing.  All this time, I thought he did it because he was deeply concerned about the profession and, well, he was inclined to be a douche.  Not so, according to divorce lawyer Lee Rosen.

If I had any guts, I’d say more about the bullshit that’s written about marketing, search engine optimization, virtual practices, unbundling, etc. because there is so much bullshit that it would fill a thousand railroad cars every month.

Having guts—being willing to tell the truth, even when it’s controversial—is a good marketing practice. It generates attention, which usually translates into increased business. You should try it because it works. Calling someone out is great marketing. It’s amazingly effective.

Exhibit  A: Brian Tannebaum,

So this has all been about increasing business by counter-marketing?  Not with an online picture like this:


(Image courtesy of Hair Club for Men and Lapel Pins-R-Us)

Rosen describes himself as “chickenshit” in comparison to Tannebaum, taking leave by saying, “Now, excuse me so I can head up to my room and see whether I can’t grow a pair.” Such humility, coming from a bald guy.

I Never Saw It Coming, Your Honor

Speaking of humility, few things are as humbling as being unable to get table on a Friday night at a decent restaurant or being sentenced, at least if you’re a hedge fund guy.  Both compel explanation, though one is easier than the other.  Via  Ashby Jones at the WSJ.

“Your Honor, I was not aware of the changes that were happening in me that blurred the line between right and wrong. They came slowly over several years. I allowed myself to slip into the world of relativism where the ends justified the means. Quite frankly, it’s very hard to imagine how I became that kind of person.” — Joseph “Chip” Skowron III, Friday, Nov. 18.

And yet, he used the information to dump stock in a biotech that was about to become a huge loser, you know? It’s really not that hard to imagine.

The above is sort of an elegant mea culpa, no? We thinks it’s likely the way that a lot of white-collar crooks get covered in mud, by wading into it very gently at first.

It always starts with a few million here, a few million there, and pretty soon we’re talking real money.  Every time a guy pleads to a corporate or financial crime, he’s stuck trying to come up with a way to explain why he isn’t a venal, malevolent criminal. Sometimes, there’s an actual reason. Most times, it’s just opportunity combined with self-interest multiplied by the belief that he’ll never get caught.

But it’s a damn fine statement at sentence, no doubt vetted through his lawyer.

Skowron was repped by Akin Gump’s James J. Benjamin, Jr., a former SDNY prosecutor.

And remember, white collar crooks, nobody knows how to prepare a better worded sentencing statement than a former SDNY prosecutor.  Credit where credit is due. Plus 60 months, $5 million in restitution and a $150k fine. Try shorting that.

Ralph Nader Wishes He Was Ben

The  Consumerist is one of those websites, almost a blawg, that actually managed to do something useful, making it stand apart from the rest of us who blathering on pointlessly.  The reason for this can be summed up in two words, “Ben” and “Popken,” the man who saved more consumers from misery than anyone else on the interwebz.

Via Bruce Carton at Legal Blog Watch, I learned that Ben is leaving the Consumerist, which has been on my blogroll for years, because, as it turns out, he hates people.

Here’s the part in these things where I’m supposed to tell you about the ground-exploding Web5.0 transdimensional hyperrealistic consumer empowerment matrix I’m starting. Except there isn’t one. I’m working on a few different ways to exploit my brain for profit. In the meantime, please stay in touch. I’m writing at benpopkenwrites.com, making funny stuff at benpopkenisjustkidding.com, and my personal landing page and catchall for my endeavors and adventures is iambenpopken.com.

Well, hate may be too strong a word, but apparently after six years of effectively humiliating corporate skels into doing what consumers paid them to do, he’s decided that it’s good to eat and he wants to make money.  My personal belief is that he’s preparing a run for the Republican nomination for President of the United States of America, expecting his campaign to be financed by his good friends at Comcast.  It could happen.

Great News for the Criminal Defense Lawyer doing Criminal Defense Law in Criminal Defense

There are few names bigger in the industry sucking earned fees out of servicing lawyers than Lexis/Nexis, so if Lexis says so, it has to be, right?  And combine the Lexis caché with the street cred of Larry Bodine, marketer extraordinaire whose lawyer consulting business was so fabulous that he traded it in for a spot on the corporate ladder, and you’ve got must-do for every lawyer, right?

The Keywords to Success: How to Generate More Business for Your Law Firm with Search Engine Optimization

That’s right, the joys of search engine optimization! As any fabulous legal marketer will tell you, use it or die.  So you think that the secret to wealth and prestige as a criminal defense lawyer lies in criminal defense lawyers using keywords as a criminal defense lawyer in criminal defense, whatever.

But this is no mere scuzzbucket SEO webinar to “demystify search engine optimization (SEO) and explore how you can strategically apply some of the latest SEO techniques to generate more clients.”  Oh no. That would be beneath Bodine’s dignity, not to mention that value added approach of Lexis.  Nope, this is a CLE for credit!  That’s right, your continuing legal education now includes demystifying SEO.

Earn CLE credits*

Wait a sec.  An asterisk?  What’s that all about?

*CLE is in the process of approval. LexisNexis is approved for telephonic/Webinar training on this topic in the following states: Alabama, Alaska, Arizona, California, Florida, Georgia, Kentucky, Minnesota, Missouri, Montana, New York┼, North Dakota, and Utah (self-study only).

┼Only experienced (having completed their first 32 hours of CLE) NY attorneys may take telephonic training for CLE. New York regulation requires that all CLE sessions must be conducted by a JD or an attorney in good standing.

Why is this part in light gray, kinda hard to read? Barely noticeable? So you mean it has yet to actually be approved for CLE credits.  Maybe because it’s absurd and outrageous and disgusting that anybody would think they deserve CLE credits for a webinar about search engine optimization?  But this is Lexis. This is Larry Bodine.  They would never lie to us about the value of SEO or its merit for continuing legal education. Never. That would be wrong.

Me and My Shadow

One time JAG turned dirty guy, Eric Mayer, who now goes by the handle  Unwashed Advocate (for reasons too disgusting to mention) has taken up making lists, in a therapeutic sort of way. 

 When I first decided to leave my comfy government job with a pension and regular paycheck, I did a lot of research about solo practice, the business of running a practice, and things that help my particular business model. I saw tons of articles and lists called “Everything you WANTED [emphasis added] to know about solo practice.” Sure, there was a lot I wanted to know. I wanted to hear that I’d make millions. I wanted to hear that it was easy. I wanted to hear that I’d get great cases and find myself arguing before a jury in minutes. I wanted to know that I’d have no problem finding success. I wanted to know that a rainbow would pop through the window every morning.

Nobody published that list. I exaggerate. Some did. Some people talked about aspects about practice that were challenging or undesirable, but they were drowned-out by the volumes of folks talking about solo practice with wide-eyed wonderment and zeal. Sunshine was regularly injected into my rectum.

The rectum obsession is disturbing, particularly in light of his new blawg name, but hardly the most disconcerting part of his post.  He proceeds to lay it on the line, with such notable gems as:

Those wonderful thoughts you had about answering your own phone evaporate once you answer your own phone. The world is full of tin-foil hat wearing conspiracy theorists. They’ve all been wronged by the government. They all have a highly complex story to share. They know how to trap someone on a phone better than a telemarketer. They’ve all been probed by aliens, and they love talking to lawyers. Now, you’re fresh meat.

And lest I not tie things together, the easiest way for the nutjobs to find your phone number is via the magic of SEO.  But as Eric delightfully points out, it not necessarily the worst thing in the world that your name gets passed around the tin foil hat society, since even your dog or cat couldn’t give a damn about your day.

You may eventually turn to Twitter for companionship. There, you’ll meet lawyers and lawyer-friendly people. You’ll share your funnies and thoughts, but, eventually, you realize something. Everyone there is pathetic, just like you. Like you, they just want to share their thoughts and funnies. They could care less about your thoughts and funnies. They only want you to read their thoughts and funnies. Like you, they sit at a computer, mumble incoherent thoughts, and chuckle at internet humor–all while farting their last highly-processed TV dinner. Calling Twitter one big circle jerk is an insult to circle jerks.

And this, amigos, is the reason why everyone, receding hairline or not, should own a classic car and take their chances on it getting smashed by some drunk.  It’s better than turning to twitter for companionship. Even if you can get CLE credit for doing so. 

If nothing else, you have to admire the fact that 7th Circuit Judge Richard Posner isn’t afraid to express an opinion, notwithstanding the fact that cases are likely to come before him that might seem to have predetermined outcomes.  Still, at least you know where you stand.

At a speech given this week in Chicago, Posner had plenty to say.

“When I was a kid, the notion that children had rights against schools was unknown,” the 72-year-old Posner said in a Nov. 11 speech in Chicago at the national conference of the Education Law Association. The Education Week blog School Law has details.

Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, said some school litigation is a result of “hypersensitive” reactions by students, and school administrators deserve more deference. “It seems to me judges ought to be very cautious before they try to displace the authority of the school administrators,” he said.

Posner said students need to “learn to roll with the punches,” according to the blog account. “Modern American kids, it seems to me, have excessive self-esteem,” Posner said. “They’re spoiled and coddled. Many of them have very aggressive parents.”

Are students “spoiled and coddled?” D’uh.  Are their parents “very aggressive?”  It certainly seems that way.  Do “modern American kids” have “excessive self-esteem?” Does the pope kiss imams?  Okay, bad example, but yes, they’ve got self-esteem up the wazoo, even though they often do nothing to justify it. 

Does this mean that judges should abdicate their responsibility to “displace the authority of school administrators?”  What’s one thing got to do with the other?

I haven’t been shy about calling millennials the “slackoisie,” or noting how unwarranted (which I believe is more precise than excessive) self-esteem (as opposed to self-respect) has screwed up a generation of students.  But the fact that students have their flaws provides no logical basis for undue deference to school administrators.  Judge Posner’s leap across this logical chasm is inexplicable.

Just as students have changed since Richard Posner was a boy, so too have school administrators, not to mention the world in which both exist.  With zero tolerance policies and regulations covering everything from the punctuation on snarky t-shirts to thoughts shared in dimly lit bedrooms on brightly lit computer screens, administrators (who prefer to be called educators despite their only seeing a classroom while drug dogs scour hallways during fake drills) have their finger in student conduct that had historically left to the discretion of parents and students.

Lots has changed since Posner’s day.  While students don’t get their knuckles smacked by yardsticks, they also don’t carry their father’s pocket knife.  Whereas a student isn’t likely to be taken behind the woodshed for misbehaving, or have his mouth washed out with soap for uttering a bad word, the chances of a parent overhearing students shouting obscenities about their teachers (except Miss Crabtree) down by the creek was slim to none.  Today, it can’t be missed on Facebook.

There are crazy things happening in schools these days, and students, spoiled and coddled though they may be, are paying a price for them that was never exacted before.  The intrusiveness of school administrators in the lives of students was just as inconceivable in Posner’s day as the notion that kids had rights. 

Perhaps the problem is that there was far less need to concern oneself with the rights of students when teachers and administrators weren’t imposing the scholastic death penalty for students behaving like the children they are.  In the name of protecting every delicate teacup from any possibility of a knee being scraped or ego bruised, we’ve regulated their every move, their every waking moment, and likely have rules about how they have to sleep as well.

No matter how excessive (or unwarranted, as I would put it) their self-esteem, this is no reason to ignore the wholly unrelated question of the propriety of the actions, and frequently mindless harm, caused by school administrators in the exercise of their similarly excessive (and I would say unwarranted) authority.  More importantly, Richard Posner is a judge, and if his confusion over spoiled children influences him in the performance of his duty to protect the rights of all, including spoiled children, then he has no business sitting in judgment.

School administrators are hardly some super-breed of government grocery clerks immune from doing wrong.  They are entitled to no more, and no less, deference than anyone in a position of authority over another person, regardless of whether students have aggressive parents or aggressive parents coddle their children.  The two issues are wholly independent, and there should be no judicial confusion on the subject.

In light of the issues presented by United States v. Jones, questioning the technological ability of the government to track movement through GPS, not to mention through cellphones, and the ubiquity of video cameras, the word “Orwellian” has become a mainstay of much discussion, and many court decisions.  While listening to oral argument in Jones, Orin Kerr  counted 5 references to Orwell’s 1984.

But as Marc DiGirolami notes, Big Brother’s ability to see and hear people at all times wasn’t the point.

I don’t believe that the term “Orwellian,” assuming it is used as a reference to 1984, is principally about government monitoring of private citizens.  It’s true that Winston Smith has to deal with the telescreen at home, and that there are hidden microphones everywhere to allow the government to spy.  I understand the allusion.  But I believe it to miss the point.

The real aim of this monitoring has to do with knowing and controlling what is in people’s minds, not only to prevent “thoughtcrime” from occurring but to eradicate the possibility of thoughtcrime altogether (this is the upshot of Smith’s experience in the Ministry of Love (Miniluv), where he comes to “love” Big Brother after a series of physical and mental tortures, culminating in Room 101).  The point is not merely, or even primarily, about watching people.  It is about controlling their minds and compelling abject adoration by dominating their thoughts.

Orwell was focused on language, not technology.  Newspeak.

Even more than this, 1984 is about the inexorable degradation of language by its close association with the state (“political” writing was not Orwell’s favorite).  I am not the first to believe that if the book were written today, its target might not have been the state, but linguistic degeneration through the influence of biz-speak or tech-speak, consultant-speak and text-speak. 

The appendix to 1984 is a discussion of how it is that language can be deliberately simplified and boiled down, and that it was perceived to be the great advance of Newspeak that, unlike all languages before it, it was continually shrinking.  Linguistic style, its complication and variety, is connected with human individuality and uniqueness of thought.  It is the aim of the state in 1984 to crush that individuality by removing all shades of meaning, all nuance, all manner of degree and particular flavor in vocabulary.  By this systematic linguistic impoverishment, people become more docile, as single and ever-contracting words come to signify two opposite meanings (doublethink).

By eliminating that aspect of language that allows people to adequately think about and communicate subversive ideas, Big Brother was able to eliminate the underlying ideas, which in turn allowed the domination of thought.

Marc’s point, that the degradation of language is happening all around us, and largely led not by government but by “biz-speak or tech-speak, consultant-speak and text-speak,” really strikes home.  Spend any time reading the crap that passes as content on the internet and, if you’re still capable, give just a bit of thought to the meaning of the words.  What we find with unacceptable frequency are strings of words that convey vague impressions with utterly no discernable meaning. 

This phenomenon isn’t limited to mommy blogs or tin-foil hat societies, but lawyers and law firms whose marketing copy reflects a wholesale absence of actual thought.  It’s become common in court decisions where rhetorical gymnastics are substituted for definitions and rationales. 

Indeed, in  the discussion of #Occupy Wall Street’s purpose, what’s become sadly clear is that people will cling to vague slogans, platitudes and notions that convey the impression of meaning when there’s nothing there.  Everyone can take their own personal comfort in the movement’s purpose, without having any capacity to know whether anyone else in the movement actually agrees with them or shares that purpose.  We embrace vaguely inspirational expressions, and don’t seem to realize that they don’t actually say anything.

And yes, it’s become a staple of political rhetoric, from the absurd acronyms used to warm us to overreaching laws (USA PATRIOT Act) to the acceptability of having TSA protectors insert their fingers into women’s vaginas “for our own protection.”

DiGirolami takes the argument one step beyond where I would, however, when he asserts:

“Orwellian” is an apt description of the new orthodoxy of “simple,” “plain,” “direct” written expression that passes under the Newspeaky term, “good writing,” or in legal circles, “effective legal writing.”  The next time somebody insists that you ought not use a word because it is too ornate, difficult, antique, complex, or unfamiliar, tell them that they are being Orwellian. 

The point Orwell made was that language needs to satisfy the ability to think and convey specific and nuanced meaning.  This doesn’t mean that it’s somehow more intellectual to use more complicated, prolix or faux sophisticated language when a simple, plain or direct word does the job.  The point of communication is to communicate, not show how many fancy words are in your repertoire.

Of course, when a particular word, even one rarely used and whose definition was forgotten immediately after taking the SATs, is the one that expresses precisely what you mean to say, then that’s the word to use. The idea is that we need to keep all the words in our arsenal available, as we can’t afford to lose the ability to express any idea, but, like force, use them only when needed and justified.

If we can think and convey ideas with precision through simple words, then that’s the way to go.  It’s the precision of our language, not the number of syllables, that matters.  And if you can’t explain in meaningful concrete terms what some string of words means, then chances are they mean nothing and you’re being treated like Winston Smith.  That’s Orwellian.