It’s been 18 months in jail and a half dozen lawyers since Gigi Jordan was arrested for the murder of her son, Jude.  Judge Charles Solomon denied her bail again, even though the proffer was to match the terms allowed Dominique Strauss-Kahn. 

There were four major distinctions between the two cases: 

DSK is a billionaire, whereas Jordan is only worth about $40 million.
DSK is a French national, whereas Jordan is American.
DSK is accused of raping a maid, whereas Jordan murdered her son.
DSK is reasonably sane, whereas Jordan’s story is nuts.

The background to this case goes well beyond bizarre, deep into the seriously crazy category.  I hesitate to even try to explain, as it goes on for more than 50 pages in the defendant’s memorandum in support of bail.  The TL;dr version is that Gigi, who made millions in a pharma startup, had a son, Jude, who suffered from significant developmental challenges.  She had an ex-husband biological father of her son (of sorts) who, she believed, wanted to kill her.  She had the biological father of Jude ex-husband, who happened to also to be her business partner (of sorts) who, she believed, would sexually abuse Jude and, she believed, had raided her assets. (Edit. Note: Got the roles reversed. It’s complicated.)

As Gigi roamed the country seeking medical help for Jude’s condition, she learned of all the things that others were doing/planning to do, to her and Jude.  She brought her story to law enforcement, who thought she was nuts.  The best she got out of them was a  72 hour stay for observation in Wyoming.  She tried to get help, but not even $40 million in net worth was enough to make the FBI believe her.  Now that’s a wild story.

Gigi then rented a $2300 a night suite at the Peninsula Hotel in Manhattan for February 4-5, 2010, where she planned to end the nightmare and protect Jude, her beloved but severely disabled son, from a life of misery.  She gave Jude an overdose of prescription drugs, and he died.  Her own suicide didn’t go as smoothly.

The defense team went from Gerald Shargel through some Washington Biglaw types and eventually ended up with my old pal, Ron Kuby, and oft-confused Harvard lawprof Alan Dershowitz.  Together, they have devised a novel theory of defense, Altruistic Filicide.  In other words, Gigi Jordan’s killing of her son was a mercy killing, the lesser of all evils in her mind.

The problem with this defense, aside from the fact that it’s never been tried anywhere, is that it’s primarily grounded in justification, but doesn’t quite hit the mark since justification would allow Gigi to kill the person threatening harm.  Had she killed her ex-husband or the biological father, the two men she contends would do the harm to her and Jude, that would be one thing.  Killing her son instead, who was a threat to no one but who would spend his life suffering at their hands, is an entirely different matter.

To craft the defense, Kuby explains that it overlays elements of duress and necessity, essentially a mash of elements of defense that justifies Gigi’s decision to euthanize her son rather than leave him motherless and subject to a life of abuse.  The thought process was better explained by analogy:

Imagine that a couple of terrorists get hold of a nuclear missile, but don’t have the launch codes.  They have a innocent hostage who knows the codes. You are there with a gun with one bullet.  If the terrorists get the launch codes, they will cause horrible death and destruction. Who do you shoot?

My first real introduction to virtual law offices and unbundled services came after  Stephanie Kimbro offered to send me a tract she had written explaining not only the concepts, but the execution.  It was an impressive piece of work, well written, well reasoned and thorough in its address of the multitude of significant issues surrounding these innovations.

While I was not entirely persuaded by aspects of her approach, I was very impressed with Stephanie’s obvious concern for, and very real effort, in addressing the ethical aspects of her practice.  She was acutely aware of the potential for clients being mislead or confused, of the potential hazards of the concepts, and went to great lengths to assure that everything she was doing was clearly explained. 

My reaction was that a young lawyer like Stephanie reflected the best in innovation.  I had serious doubts that others wouldn’t cherry pick the part of Stephanie’s concept that were easy and profitable, and ignore the parts that were difficult, onerous and might cause potential clients to shy away.  Not every young lawyer would be as industrious and ethically concerned as Stephanie.

Belying this concern is the notion floating about among those who find the virtual law office model perfect for their situation that the restrictions of state jurisdiction and admission an archaic concept.  One of the changes that legal futurists want to see happen is the elimination of admission by state in favor of national admission, thus making the limitations of state borders and the “tyranny” of state disciplinary rules an unpleasant memory.  With the advent of the internet, the limits of physical presence no longer matter, it’s argued.

Missing from this facile analysis is that states have laws and procedures that differ from one another.  The internet may allow a lawyer from Nebraska to scarf up clients in Wyoming, but it doesn’t enable them to know Wyoming law and practice, nor provide any measure of security to potential clients that they are competent to render counsel or representation there.  Having tried cases in states across the country, always with local counsel at my side, I can attest to the reality that it is impossible to provide competent, no less zealous, representation without knowledge of local law, procedure and practice.

The panacea of eliminating state admission will certainly exist for lawyers who find it very convenient to exist virtually, but this is where the ethical concerns come into play.  These lawyers think only of themselves. They say they are thinking of clients, as in the curious argument that “since I’m such a wonderful lawyer and my clients love me so very much, by making myself available and convenient for them to hire me, I’m doing clients a service.” 

Aside from this point being entirely circular and self-serving, it’s unpersuasive.  Not to the maker of the argument, or to others who, like the maker, want so dearly for the point to be true that they are blind to the flaws, but to the rest of the legal profession, young and old.  We cringe upon hearing/reading irrational arguments.  They scare us, that these arguments are being made by people who are admitted to practice law and hold the responsibility of other people’s lives and fortunes. 

It scares us, young and old, because the arguments reveal something we fear, that there are lawyers who are incapable of distinguishing rational arguments, sound thinking, competent analysis, from idiocy.  We know there are incompetent lawyers out there, lawyers we can’t believe could possibly survive law school, pass the bar, be allowed the awesome responsibility of a lawyer.  We know they’re there.  We are frustrated when their existence smacks us in the face.  We’re here. We’re morons. Get used to it.

Then there are the vultures who have created businesses that prey on young, naive, ethically challenged lawyers, bolstering their vague comprehension of ethics by telling them that they are just as wonderful as anyone else, that experience is worthless, even counterproductive (look at those stupid old dinosaurs who don’t get it), and pushing them to ignore both the development of skills and the recognition of ethical concerns so that nothing stands in their way from overnight success. 

They tell young lawyers what they want to hear.  We all gravitate toward what we want to hear.  We adopt it. We embrace is.  Whether it’s blindness or myopia, these vulture take advantage of youthful exuberance by playing to their needs and prejudices.  A point ignored, that I often say to young lawyers, is that if you are so brilliant and wonderful now, how much better will you be ten years from now, when you’re still brilliant and wonderful, but have a decade of experience under your belt? 

The smarter ones stop dead in their tracks, realizing that this point is both obvious and in fundamental contradiction to what they’re being told by the vultures, that they are already the complete package and should ignore those experienced lawyers warning them that they aren’t ready for prime time.  They realize that those experienced lawyers are them, ten years in the future. They realize, maybe for the first time, that experienced lawyers aren’t some breed of dinosaur, but just like them, only with experience.

A commenter here recently scolded me for being negative, telling young lawyers what they shouldn’t do, where she thought I ought to tell young lawyer how they could market themselves to become overnight successes.  It was a particularly foolish comment, assuming that there is such a magic bullet.  My advice to young lawyers has been offered here repeatedly, work hard, develop skills and always put your clients’ interest ahead of your own. That means we do nothing that might deceive clients or potential clients.  It also means that you won’t achieve overnight success. 

The young lawyers who want to embrace innovation because it allows them to engage in the practice of law under whatever terms best suit their needs don’t like my advice.  As with the commenter, it’s as if it never happened.  Don’t tell me to work hard, tell me how to get rich on the internet!!!  And if you don’t, then you have nothing to offer me.  They instead flock to others who will whisper the sweet words they want to hear.

The sense one gets is that young lawyers, busy ascribing malevolent motives to old lawyers to explain why we use ethics to scare them away from the things that will make them overnight sensations, are all a bunch of dunderheads.  They can’t write. They can’t think. They have no grasp of ethics and no concept of what it means to be a lawyer.  They are most assuredly not client safe.

But then, there are plenty of young lawyers,  Matt Brown in Tempe, Keith Lee and Stephanie Kimbro, for example, who remind me that they aren’t all wrapped in their quest to promote themselves as something they’re not, and likely will never be given the poor quality of their writing, thinking and ethics.  There are plenty of young lawyers who aren’t out to achieve immediate fame, wealth and prestige.  It’s just that the self-promoters, the whiners, the deceitful, make sure they’re screaming the loudest.

It’s not about innovation, which may or may not be viable based on far deeper concerns than whether it has the potential to make a quick buck for a particular lawyer at any given moment.  It’s not about old lawyers hating or scaring young lawyers, though a good scare on matters of ethics is critically impo
rtant to their realizing that ethics matters, both because it could spell the loss of their ticket as well as the more important reason, because lack of ethics harms clients.

This is about whether the future of the law lies in elevating the worst, most facile ideas of ignorant children, or developing the next generation who will bring dignity and competence to their profession and those we exist to serve.  If this doesn’t comport with your view of the future of law, and for some it won’t, then I sincerely hope you find something else to do with your life.  You do not deserve to be a lawyer.

Postscript:  This post comes from the discussion around the blawgosphere started by Rachel Rodgers’ post at Solo Practice University.    She’s been given a  good  thrashing for  her efforts, yet appears to have  learned nothing from the experience.  But this post isn’t about Rachel Rodgers, per se, who, as marketers like to say, has diminished her brand.  Rachel is but one young lawyer among many, even if she’s made herself the poster girl for this issue.  Let’s assume that Rachel will never grasp the issue, and focus our energies toward others who have the desire and capacity to be better.

Rather, this is a post about all lawyers, young and old, for who hide behind the word “innovation” as an excuse to pretend that they can recreate ethics to justify whatever pleases them.  They have the choice of being a Stephanie Kimbro, for whom ethics is a fundamental concern, or a Rachel Rodgers, for whom ethics is hurdle to circumvent. 

The Annual Meeting of the American Bar Association, held in Canada as there was no American city worthy, produced little of surprise beyond the  distribution of free condoms to the participants.  I hear that some put the condoms on their heads, which makes perfect sense.  What was surprising was that the condoms were free, as if the delegates wouldn’t have paid double for them if they had to.

With this backdrop, outgoing ABA president Stephen N. Zack used his bully pulpit to call for a change from lawyers.  Not for a return to integrity.  Not for a return to the zealous representation of their clients.  Not to stop the downward spiral of deception in the quest to make money.  From the ABA Journal :

ABA President Stephen N. Zack today called on lawyers to take the lead in returning civility to a public arena that has come to be dominated by anger and insult.

“Civility used to be inherent in public discourse,” Zack said in an address this evening to the Opening Assembly of the ABA’s 2011 Annual Meeting in Toronto. “Where did we go wrong?”

Too often today, said Zack, whose one-year term as president ends Tuesday, the approach people take to political discussion and debate is characterized by an attitude that, as he described it, “I disagree with you, and not only that, but you’re a bum, and I’m going to yell so loud I can’t hear what you’re saying.” That tone cannot continue, Zack told a packed audience at Koerner Hall in Toronto’s Royal Conservatory of Music. “The continuing slide into the gutter of incivility demeans us all,” he said.

A kinder, gentler nation. Why does that sound so familiar?  While it’s not clear the arena to which Zack directs his remarks, as it’s not clear whether he’s speaking of ad hominem argument or the tendency toward the substitution of lies for fact or pushes for violence. 

If his focus is national politics, then he’s mistaken.  America has a checkered past when it comes to civility, although our national memory often ignores the rough words and remembers only the platitudes.  “Screw you, Madison, you blithering idiot,” would hardly seem right etched into the lintel over a legislative chamber.

An issue raised by such calls is that they are used by self-serving scoundrels as a sword rather than a shield.  How often does someone propound a point by arguing, I am right and anyone who disagrees with me is mean, stupid and ugly? 

To this end, it’s critical to understand one of the most misused phrases in the lawyer’s lexicon, ad hominem. It comes from the logical fallacy, argumentum ad hominem, which refers to attacking the speaker and his motives rather than the argument.  It’s often misunderstood as saying uncivil words. It’s not.  If an argument is stupid, or the motives of the arguer undermines the argument, it is not an ad hominem attack.  Indeed, it is often the appropriate response to argumentum ad ignorantiam .

Which raises the crux of the problem, that the real issue seems to be that people want to be free to make whatever point they want, whether it’s a well-founded, factually accurate, logical point or their unfounded, irrational, knee-jerk feelings, without anyone challenging them or taking them to task for what they say.  It’s an entitlement, the right to express an opinion.

The snarky response is that opinions are like assholes, everyone has one and they all stink.  But this is unhelpful, and untrue.  Some opinions are illuminating and raise issues worthy of thought, if not agreement.  Some aren’t.  Some are just stupid, baseless and worthless.  And yet people feel empowered to tell them to the world.

The other day, I twitted about a sentence in a cases, and someone twitted back to me with a question about it.  I responded, although I didn’t know the person and believe he was either a law student or young lawyer.  He replied by telling me what he thought (“I think the law is stupid”).  My sur-reply was, “who cares?”  Not only did I not know this person, but I certainly didn’t invite him to express his opinion. I answered his question, nothing more.  My reaction was less than warm, but was it wrong?

There is no interest group out there advocating for less civility in public discourse, but that masks the problem.  The nature of argument is poor is generally poor, whether because it confuses feelings with reasoning, relies on falsehood or self-serving assumptions rather than fact or employs a logical fallacy. 

On the sidebar of this blawg, I include the following:

I invite thoughtful comments, but please keep it civil and respectful.

With regularity, someone will point to these words and play “gotcha” with me, whining that I have not been civil and respectful to them.  They miss the precatory phrase, that I invite thoughtful comments.  The poverty of thought is often astounding.  There are times I mutter to myself, how does this person manage to get out of bed in the morning without hurting himself.  I fully expect the person posting a comment (and often a question, which I note is not a comment) to believe that whatever it is he’s thinking (or more likely, feeling) is indeed thoughtful, if not downright brilliant.  This is a very subjective determination. Here, I get to decide because this is my home.  Elsewhere, it’s not my call. Or yours, unless it happens to be at your home.

President Zack’s call for civility is banal.  Of course, it would be much nicer all around if we were all civil with each other.  But it starts with a higher level of thoughtful public discourse, and frankly, much of it starts in the gutter and stays there.  If we were capable of better thought, we would have more civil discourse. If people limited their public discourse to rational ideas, they would be far more likely to receive a civil response.

People feel empowered to spew any nonsense that pops into their minds, and with the absolute belief that they are entitled to do so, and do so without impunity.  This is the root of incivility, and the expectation that others owe you civility in return for stupidity is misguided.  So you want to be treated with civility and respect? Then control your impulse and say things worthy of civility and respect. You know, thoughtful things. 

If only Zack focused on the action rather than reaction, he might have been on to something. Instead, he was just giving away free condoms.  No one will get a disease, but no one will give birth to a worthwhile thought.

Former Luzerne County, Pennsylvania Judge Mark A. Ciavarella Jr. has been sentenced.  Not to the 87 months negotiated by the United States Attorney as part of a plea deal,  rejected by District Judge Edwin Kosik, but to 28 years in prison.

As  Jeff Gamso puts it,

Gordon Plugh thought it was over.  Judge Charles Siragusa in the Western District of New York suppressed his statements and the Second Circuit affirmed.  That’s pretty much the end of the story.  But not this time.

The ruling seemed clear enough, that Plugh’s refusal to sign the waiver of rights form after his arrest for kiddie porn was an unequivocal invocation of his Miranda rights.  No means no, you know?  But then the Supremes decided Berghuis v. Thompkins, holding the silence is no longer golden.

As the government’s behest, the court revisited its affirmation of Judge Siragusa’s suppression, and, gasp, Plugh’s world shifted.

Specifically, the Plugh I majority concluded that the defendant’s “unequivocal[] refus[al] to sign the waiver [of rights] form” was itself sufficient to invoke those rights, id., thus rejecting application of the standard set forth in Davis v. United States, 512 U.S. 452 (1994), whereby a defendant must “unambiguously” invoke his rights in order to cut off questioning, Plugh I, 576 F.3d at 142-43. As the Plugh I majority reasoned, “Davis does not instruct courts on how to analyze an initial invocation of one’s Fifth Amendment rights following the Miranda warnings” but is instead limited to cases where a defendant attempts to “subsequently invoke[] previously waived Fifth Amendment rights.” Id. at 143.

Shortly thereafter, while this case was pending before the district court, the Supreme Court announced its opinion in Berghuis v. Thompkins, –U.S.–, 130 S. Ct. 2250 (2010). There, the Court clarified that the Davis “unambiguous[]” statement standard does control a court’s analysis of an initial invocation of both the right to remain silent and the right to counsel, id. at 2259-60, and it further held, on the facts of that case, that the defendant’s conduct, which included a refusal to sign an advice-of-rights form, did not amount to an “unambiguous” invocation of those rights sufficient to cut off further questioning by law enforcement officials, id. at 2256, 2260.

If this seems a bit much to follow, here’s the TL;dr version: Unequivocal isn’t unambiguous.  In a sense, you can’t quite blame the Circuit, where the opinion by Judge Debra Ann Livingston adopts one of the most absurd 5-4 rulings to ever parse American rhetoric.  Of course, to get there, the Circuit could have just said “no,” whatever that means these days, or focused instead on the factual disparities of the case before them from the Berghuis decision.

Having made the choice of revisiting its earlier decision, the court started from a curious position, set forth in footnote 3:

Because we revisit the district court’s order of suppression, in doing so, we review its factual findings for clear error and in the light most favorable to the government. We review questions of law de novo.

Wait a sec.  The government lost in the district court, lost on appeal, lost again in the district court in seeking reconsideration and was now back to the Circuit for the second time, and the Court’s review compels them to consider the facts “in the light most favorable to the government?” Win, lose or draw, the government gets the benefit of the doubt?

The upshot of the opinion is that Plugh’s unequivocal negative response to signing away his rights is not the unambiguous equivalent of an affirmative unequivocal invocation of rights.  In other words, just because he refused to waive his rights doesn’t mean he invoked them.  He was in Miranda rights purgatory, and as footnote 3 tells us, a draw goes to the government.

What’s learned from this decision, as well as Berghuis itself, is that there is no substitute for the utterance of the magic mantra:

I do not want to answer questions.

I want to speak with my attorney.

Forget nuance or politeness.  Forget trying to fudge the line between getting your face smashed by the agent who doesn’t think well of your assertion of rights that will make his life more difficult.  Either get the words out of your mouth exactly as shown or kiss it good-bye.

The only remaining problem, of course, is when the defendant says precisely what he’s supposed to say in order to invoke his rights, and the agents testifies that it never happened.  There’s no camera recording the invocation, nor witnesses who aren’t wearing shields or cuffs.  It’s the word of the creepy, evil defendant that he said the magic words versus the word of the hero, honest, law enforcement agent who protects us from terrorists and saves babies who says he didn’t.

But then, that’s always the case, isn’t it?  There’s absolutely nothing ambiguous about it.

Via Louisville Law School Dean Jim Chen at MoneyLaw, a blawg for alternate concepts of how we should look at legal education (and where Jim handed me the back door keys years ago but never added me to the list of contributors lest I stink up the place with my vulgar trench lawyer language and attitude), there’s a new deep throat in the Academy.

I can no longer ignore that, for a very large proportion of my students, law school has become something very much like a scam. . . . When people say ‘law school is a scam,’ what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.

So laments the introductory post to Inside the Law School Scam, a confessional blog by an anonymous “tenured mid-career faculty member at a Tier One school.” This fascinating contribution to the burgeoning online literature on the economics of legal education and law school graduates’ job prospects is unique because it comes from the inside. In his critique of legal scholarship, this blogger, both tenured and anonymous, confesses that “students at the contemporary law school end up paying enormous amounts of money for something that they aren’t getting, and in many cases wouldn’t want even if it were being provided to them.”

If tenured law professors are averaging about an hour a day over the course of a 250-day work year on preparing for and teaching their classes, what else are they doing with their time? Most ABA-accredited law schools are units within research universities, and research universities usually have formal rules that count teaching and “research and creative work” equally in the tenure and evaluation process. In fact at the most elite universities, and to a lesser extent at the law schools within such universities, these formal rules are routinely ignored. 

This led to changes in hiring practices — changes that were more pronounced at elite schools, but could be seen to lesser extents well down the legal academic Great Chain of Being.  It began to become common to hire entry level faculty with advanced degrees other than a JD, and to pay less attention than ever (not that much had been paid in the past) to whether entry level hires had practiced much law.  More attention was paid to whether candidates had published something, and to whether they supposedly had “scholarly potential.” 

***

Again, all this was much more pronounced the higher one went in the hierarchy, but, in a development that has had enormous economic consequences for the latest generations of law students, a very large number of law schools decided that, if the Harvard Law School was going to start acting more like the Harvard history department, then the Pretty Good Law School in Flyover Country was going to start acting more like the Harvard Law School.

In my previous post, I discussed some of the reasons why so much legal education is both a practical and intellectual waste of time.

I didn’t touch on some related issues, such as the fact that most law faculty have had literally no classroom teaching experience before they become “law professors,” that they get no training or real guidance in regard to what they’re doing in the classroom at any point in their careers, and that many of the traditional methods of law school teaching, in particular cold-calling students in order to require them to participate in a pseudo-Socratic dialogue, are simply idiotic (if research into education methods has established anything, it has proven that fear is a powerful impediment to learning).

Of course some law professors will swear they dedicate far more time to teaching than this. Some of them are even telling the truth (How much this benefits their students is another question, given that ever-more exquisite elaborations of doctrinal niceties soon reach a pedagogical point of sharply diminishing returns).  But others are “dedicating” a good deal less.  Some professors who have taught exactly the same classes for a decade or two do essentially no preparation any more.  They are like the most burnt out teachers at your high school, if you went, as I did, to a middling-quality public school. But with this difference: the most burnt-out teachers at your high school still had to stick around at work for seven or eight hours a day. Also, they didn’t get paid $200,000 (or even quite a bit more) per year. And needless to say you didn’t have pay $50,000 a year for the privilege of being exposed to their talents.

Someone should inscribe the phrase Fake It Till You Make It (in classical Latin naturally) on the façade of Harvard’s fancy new law building – and on that of every law school in America.

I spent a few minutes yesterday searching to see what other lawyers had to say about their area of law (other than criminal), and came upon website after website offering people free legal advice.  Some, like Avvo, named the lawyers who gave of their time, while others “verified” that the answers came from unnamed “legal experts.”

How do I say this nicely?  It was shocking.  It was free, for sure, but much of the “advice” was dead wrong. I mean, horribly wrong. Grossly wrong. Just plain wrong.  How many people are harmed by the free advice they find on the internet?  We’ll never know, but they are most assuredly harmed.

The phenonmenon of free legal advice as a come-on to people who either can’t or won’t pay a lawyer to provide them with reliable, or at least accountable, legal counsel is not only here to stay, but has become overwhelmingly pervasive.  Websites I’ve never heard of are telling folks how to conduct their legal affairs and relationships.  And the nice people who ask questions, or read the questions asked by others, get answers.  And the answers are wrong.

We are harming people, and we need to stop harming people.

From what I saw, there are a few problems that keep reappearing.  By no means does this exhaust the problems of bad legal advice online, but these issues appear over and over.

1.  Not your area of “expertise.”  I put “expertise” in quotation marks because many lawyers are generalists and have no area of expertise. Others have expertise in a particularly niche, maybe even a micro-niche, but just can’t control the urge to stray outside the lines and give advice peculiar to a particular jurisdiction or particular subset of a practice area to issues that are clearly beyond their tiny pond.

You think you can help?  Grow up.  Wise up.  Just because you’re all puffy about your brilliance as a lawyer doesn’t mean that you have anything to offer in areas of law you neither know nor practice.  Yes, your spouse tells you how smart you are.  Your mother is proud of you. Your clients think your the ginchiest.  Who cares?

Let’s talk lawyer to lawyer, a bit of truth. You aren’t spending your time researching your answer.  You know that it’s not going to land you in a malpractice suit or grievance. You know that you’re doing it to promote yourself, and that the poor schmuck on the receiving end isn’t going to know whether your advice is decent or utter crap.  Hell, it’s free and, well, close enough.  And you think you’re right.  Guess what? You’re not.

2.  You’re not yet a lawyer but you play one on the internet.  It’s like a meme (a word best understood by digital natives that older folks can’t quite understand) that young lawyers are every bit as good, knowledgeable and worthy as experienced lawyers.  The only difference is that they couldn’t get a job out of law school, because us old lawyers screwed the whole profession up and left them holding the bag for a couple hundred thou in debt and no place to go every day, so they have to scramble online to buy their next bag of Cheetos.

The old maxim that an old fool is worse than a young fool comes up from time to time.  The anecdote about the old time lawyer who is clueless gets tossed about.  The stories about partners who can’t type out their old emails, or haven’t cracked a casebook in half a century abound.  And to some extent, it’s all true.

Yet this is utter nonsense that betrays self-serving stupidity.  If you’re such a brilliant lawyer two weeks out of law school, how much more brilliant will you be with ten years of experience under your belt?  Oh, but that’s you, right. You’re different. You’re special. You’re not like all those other lawyers, who are wrong and stupid.

Maybe you are brilliant.  Probably not, but let’s massage your child’s ego for a moment.  Do you not think you will be a better lawyer with experience?  Do you not think that those who have experience have gained something from it?  Do you not think there are other lawyers, at least smart if not as brilliant as you, who have more experience and know more than you do?

These experienced lawyers have a depth of understanding of what the law is, how the law works, and how problems are best addressed that you don’t have.  Not because you aren’t brilliant, but because you’ve never actually practiced the law, experienced what works and what doesn’t, seen where seemingly correct advice goes disastrously wrong.

I do not believe that the lawyers who are playing the free advice game have an intention of harming anyone, misleading anyone, giving really awful advice.  There’s no benefit to them in doing so, and most of us have at least a smidgen of conscience that makes us want to help others.  But the road to hell is paved with good intentions.

Stop harming people, even if you don’t mean to.  Stop adding to the stupidity of the internet.  If you do not really know your stuff, if you do not have the experience to know that your very authoritative answer is correct, don’t do it.  So what if you won’t make Level 42 contributor on Avvo, or the $10 some misbegotten “answer” website pays its “experts.”  Do you not care that people are reading your words and believing them?  Do you not care that someone out there is worse for having coming across your advice?

* Correct Answer are not free,

Stories of jurors Googling details during trial or deliberations have become pervasive, as social media has become part of the fabric of our lives.  For every participant in the system, this presents a nightmare, where the limitations of admissibility of evidence and the instruction to base the verdict only on the evidence presented in the courtroom become meaningless.

At  Idealawg, Stephanie West Allen offers Senior District of Colorado Judge John Kane’s thoughts on how to avoid “mistrial by Google.”

The dangers of “mistrial by Google” have been in place for a number of years.  The use of various devices to access the internet is ubiquitous and more than a few mistrials have had to be declared because of such misuse.  I know I had one — and none since— over three years ago.  An instruction at the close of the evidence is not sufficient to enable a jury to refrain from this international obsession. 

It is necessary to dwell on the nature of a trial and the responsibilities of jurors beginning with the voir dire, and instructing before the opening statements, during the taking of testimony and at the close.  I cannot conceive of instructions that do not set forth the reasons for them.  It is also necessary to provide jurors with copies of the instructions at the beginning of the trial, to allow them to take notes, to submit questions and to include an instruction that each juror is responsible for the proper conduct of the other jurors.  The instructions should also advise the jurors that failure to comply, failure to confine deliberations to the evidence adduced at trial and failure to insure one another’s proper conduct can be deemed a contempt of court. 

Even with this “organic” infusion of instructions, it remains essential to prohibit the possession of cell phones and such during court sessions and throughout jury deliberations.  Given the easy access to information for everyone in our society, including jurors, the idea of waiting until the end of the case to present instructions for the first time is patently ludicrous.

Yes, I do believe it and have employed practices followed by post-verdict interviews that confirm my solutions to the problem.  I’d be happy to talk with him or anyone else about this.  “Mistrial by Google” is a symptom of an underlying malaise that is correctable with an appropriate amount of energy and a willingness to try cases other than as they were tried in the reign of Henry IV. 

Don’t be fooled by his “senior” status, as Judge Kane is one of the most forward thinking and aware federal judges on the bench.  There’s nothing to be gained in ignoring or denying popular culture.  Googlers gonna Google, unless someone explains to them up front why they really can’t and shouldn’t. 

It appears that Judge Kane’s methods rely on the very remarkable fact that most jurors truly want to do right.  Whether they have the capacity is another matter, but it’s always remarkable how they desire to be good jurors.  Of course, there are always the “stealth” jurors who have their own agenda, and no plan of adhering to the judge’s instructions, but these jurors can’t be helped anyway and the admonitions of contempt are, hopefully, sufficient to make most of them think twice.

While it may not be a foolproof plan, it’s certainly one that we should know about and advocate for in order to prevent the jury from deciding guilt because Google (or Facebook, or Twitter, or whatever the next cool thing may be) says so.  As Judge Kane says, waiting to deal with the problem until the end of trial is “ludicrous,” and given that social media isn’t always kind to those accused of crimes, it’s certainly in our best interest to make sure that the evidence is limited to what comes through the witness stand.

“Dog bites man” is not news, as that’s what one expects a dog to do.  But dog comforts witness on the stand is another matter, even though that’s what one expects a dog to do as well.  The  New York Times reports of Rosie, described as “the first judicially approved courtroom dog in New York.”

Rosie sat at the feet of a 15-year-old witness while testifying, who alleged that she was raped and impregnated by her father.  A terrible crime, and a traumatic situation.  The teenager kept hugging Rosie throughout her testimony, and was comforted by the dog’s nuzzling.  

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

Testifying is an ordeal for any witness, and that’s what it’s supposed to be.  It’s a hot seat, a place where an accuser is tested under the crucible of cross-examination and confrontation.  While we may well have a soft spot for children (which is usually reflected in a gentler, more circumspect cross, as jurors are offended when it appears that a lawyer is bullying a child witness), their testimony can put a person in prison just as well as anyone else’s.  Indeed, the Salem Witch Trials were all about the word of children.  Children with wild imaginations and malevolent purposes.

It’s no surprise that a dog will bring comfort to a vulnerable witness, That’s one of the things dogs do.  To watch a lovable dog, “man’s best friend,” adorable, as attorneys for both sides conceded Rosie to be, lend her cuteness to the witness is to bolster the witness’ credibility and likability.  Essentially, the dog becomes an unsworn witness.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause .

Yet, this is exactly what the dog shouldn’t do.  While the impetus for allowing a dog into the courtroom is to bring a measure of comfort to a vulnerable witness so as not to add to the trauma endured, it is not to have the dog become a prop in the passion play.  But dogs being dogs, and jurors being people, it’s impossible for them not to notice how the dog’s devotion is given to the witness.  Even dog-haters are moved by this display.

And then there’s the problem of the dog doing its job too well.

At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose. Mr. Tohom was convicted and sentenced to 25 years to life.

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted.  Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question. 

But we must feel similarly bad for the person convicted on erroneous testimony.  We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised.  Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

And that, a funny line though it is, strikes at the heart of the problem.  In the courtroom, we can’t cross-examine the dog.

Until a person is convicted, he is not guilty of a crime, and the witnesses against him are not his victims.  Sure, our sense of fairness, rightness and empathy tells us that this a legalistic ideal, and pales in comparison to the trauma suffered by a child.  No one, least of all me, is immune to the feelings of a child.  But any trauma endured by a witness must be viewed through the prism of the purpose of a trial. 

The child can (and most assuredly will) be prepared for the trauma, and can be given therapy afterward to dissipate the discomfort of being challenged on the witness stand.  Life has trauma, some of which can’t be helped, but which can be addressed and comforted with appropriate care. 

We cannot, however, ignore the reality that darling children are sometimes wrong, and sometimes lie, when they give testimony.  The purpose of cross-examination is to ferret out such testimony, and anything that undermines the purpose of confrontation makes no sense in a courtroom.

As  wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.

And no one has yet suggested that the defendant be allowed a cute, adorable, slobbering dog to sit at his feet, to lend his loving dog-eyes to the warmth of the accused, just in case he’s the person suffering trauma in that courtroom.

Edmond Demiraj thought he had a deal.  The government came to him and asked him to testify against a notorious Albanian mobster.  In return, the government promised to protect Demiraj and his family. Not a great deal, but a deal.

Via Liptak in his Sidebar column :

The two sides made a deal, Mr. Demiraj said. In exchange for his testimony, he and his family would be kept safe.

But [Bill] Bedini was allowed to post bail and promptly fled to Albania. With their witness no longer of value to them, federal authorities deported Mr. Demiraj, also to Albania.

Mr. Bedini was waiting. He kidnapped, beat and shot Mr. Demiraj, the bullet just missing his kidneys.

Mr. Bedini also went after members of Mr. Demiraj’s family, kidnapping two of his nieces and forcing them into prostitution in Italy. “This was payback to your Uncle Edmond for when I was in the United States,” he said as he beat the women, who were 19 and 21.

While Demiraj was ready, willing and able to hold up his end of the deal, the government was another story.  Clearly, it was Demiraj’s fault that Bedini absconded.  He put his butt on the line in reliance on the government’s assurances that they would allow, Demiraj, here without the proper documentation, to stay in the land of plenty and be protected from retribution. 

But that was when they needed him.  When the deal is no longer a good one for the government, then there’s no longer a deal.  He was able to return to the United States lawfully, and is now fighting to prevent the deportation of his wife and son.

Mr. Demiraj and his nieces are now lawfully in the United States. He owns a small painting company near Houston. But the decision in January also brought bad news for Mr. Demiraj. It ordered the deportation of his wife, Rodina, and teenage son, Rediol, who have both lived in the United States since they entered the country unlawfully in 2000. (The two youngest Demiraj children were born in the United States.)

The idea that members of his family will be forced to return to Albania terrifies Mr. Demiraj.

“Bill Bedini is a dangerous person,” Mr. Demiraj said on the phone the other day, in halting English. “For sure he’s going to kill my son. My wife, maybe he’s going to kill her and maybe he’s going to send her to prostitution.”

The government does not really dispute any of this.

And, wait for it, this doesn’t end the problem.  In fact, the Fifth Circuit gave the Demiraj situation its deepest consideration, before  affirming the order denying asylum and that his wife and son be deported.

In a divided decision, a three-judge panel of the federal appeals court in New Orleans agreed. It is true, they said, that a federal law says asylum may be granted when an alien fears persecution “on account of” family membership.

But the judges in the majority added that Mr. Demiraj’s wife and teenage son did not qualify. Their reasoning takes a minute to grasp.

“Mrs. Demiraj is at risk because Bedini seeks to hurt Mr. Demiraj by hurting her — not because he has a generalized desire to hurt the Demiraj family as such,” Judge Catharina Haynes wrote. “Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife.”

It takes a bit of thought to appreciate the rationale.  Because the harm that would most certainly befall Mrs. Demiraj should she be returned to Albania would happen regardless as payback for Demiraj being a government witness against Bedini, it’s not the sort of harm that would be covered by a request for asylum.  Sure, no one doubts that Bedini will go after her, perhaps kill Demiraj’s wife and son, maybe just torture them, but that’s because Demiraj agreed to help the government.  We can’t just give asylum to anybody, you know.

But let’s not forget how this “lurid” situation arose, because a guy made a deal with our government.  What would it have cost the government to honor it’s bargain, to allow Demiraj and his family to remain here and be safe?  It’s not like he would be the only person to have remained in the United States whose basis was a bit sketchy, and we’ve got enough room here that he wouldn’t be stealing air from good Americans.

And yet, nobody seems terribly concerned that the situation that put a bullet in Demiraj’s gut was created by a request from our very own government, and his silly Albanian naivete that the United States of America would honor its obligations, especially when lives were very much at stake.

There are prosecutors who keep their word.  There are courts that hold the government to its deals, even when prosecutors decide that they don’t have to keep their word.  But when they don’t, be ready for that bullet.  Or say good-bye to your wife and son, because they’re going to pay for your trusting the government.  And you can’t count on anybody, whether prosecutor or judge, to save them.