So the economy remains problematic and jobs are hard to find.  That doesn’t stop milliennials from believing that they, each of them individually, will do spectacularly well in their lives.  They believe.  From the New York Times, Tali Sharot writes:

THIS month American college seniors will don caps and gowns. As they await receipt of their diplomas, they will absorb lessons handed to them by the accomplished men and women who deliver commencement speeches. More often than not the speakers will be outliers: rare individuals who made it against all odds. More often than not their message will be “dreams come true … take chances … if you try hard enough you will succeed.”

“Don’t know that you can’t fly, and you will soar like an eagle,” Earl E. Bakken, founder of the medical technology company Medtronic, told the University of Hawaii’s class of 2004. “You have to trust that the dots will somehow connect in your future,” Steven P. Jobs told Stanford’s 2005 graduates.

The thing about outliers is that they’re outliers.  There is a reason why they are getting the honorary degree, providing the final note of inspiration before sending graduates on their way, and the cashier at the Piggly Wiggly is not.

We now know that underestimating the obstacles life has in store lowers stress and anxiety, leading to better health and well-being. This is one reason optimists recover faster from illnesses and live longer. Believing a goal is attainable motivates us to get closer to our dreams. Because of the power of optimism, enhancing graduates’ faith in the American dream by presenting them with rare examples as proof may be just what the doctor ordered. Their hopes may not be fully realized, but they will be more successful, healthier and happier if they hold on to positively biased expectations.

About ten years into practice, criminal defense lawyers talk amongst themselves, usually over an alcoholic beverage, how they can continue doing this.  The exuberance of youth is gone.  The belief that truth and justice will prevail is the set up for a punchline to a joke (appeal immediately!!!).  It’s disheartening going into court, day after day, only to be smacked again, first by the judge and then by the client.  Why bother?

For those who began their careers with a twinkle in their eye and ideals in their heart, this is where cynicism becomes overwhelming, the sense that there’s no winning for trying.  It’s where lawyers stop worrying about trying and only about getting paid.  It’s where lawyers give up, and yet continue.

As a charter member of the  legal  curmudgeons club, much of my written efforts are intended to take the bloom off the rose for the unduly optimistic.  They may feel good about themselves, but their optimism puts clients at grave risk, their inability to reasonably assess the risks means that those who pay the price for their lawyerly delusions, the defendants, are being advised to take chances, employ tactics, that reflect the lawyer’s hopefulness.  When things don’t go as well as hoped, the lawyer goes home, feeling pretty darned awful, and the defendant goes to prison, feeling even more awful.

There’s a flip side, even to a curmudgeon.  Once you accept the fact that life isn’t fair, that platitudes are only good for engraving on lintels and that the life you’ve chosen means you’re going to have a perpetual headache, you stop feeling bad about the law, about yourself, about the unpaid bills, and start realizing that the best we can hope for is to help one person.  That’s not such a bad thing.  And if we’re relatively fortunate, we can become serial helpers, and do it again.

Shalot’s point is that unreasonable optimism, the sort that let’s people believe they need not save for retirement or check out that lump in their breast, is just foolish, but the loss of optimism, the belief that you can accomplish something, will waste your life.

There is no point in bemoaning every perceived wrong and injustice in life.  We’re not so special, so wonderful, that we can fix it all.  Let it go.  At the same time, every once in a while we help a person, we save one person from falling into the abyss.  When that happens, it’s magnificent.  It may not register on your personal Richter Scale at the time, but you can bet it changed the life of a defendant, her family, her children. 

I had a chat with one of my protégés yesterday, who finished a trial in a case that I sent to him.  From the outset, it looked like a dead loser, a decent guy who made boneheaded decisions that created the appearance of guilt when there need not have been any.  He did it for a woman, who was the one who called me about the case, She was a monumental PITA on the phone, and must have called me back a dozen times to ask more questions.  At no point did she comprehend that her man sat in jail for doing her bidding.

The trial resulted in acquittal on the top two counts and hung on the bottom two.  It was a great verdict, given the facts, and my friend should have been very proud of himself for having done an excellent job.  Instead, he was depressed, feeling as if he had blown the one chance the defendant had to win.  Retrial will not be as kind.

I metaphorically smacked him through the telephone.  “Who are you to be so arrogant as to whine about achieving less than perfection?” 

Maybe someone reading this post will turn out to be the next Gerry Spence, if you believe his press releases.  But the rest of you, of us, won’t be the outlier.  So we’re relegated to banging our head against a wall day after day, and taking our victories in pieces, one case, one client, one issue at a time.  This is what we do.  This is the best we can hope for.

When you expect too much, and don’t achieve it, you fall into the funk and give up.  When you expect nothing, you will most assuredly achieve it, but there will be purpose to your being a lawyer.  When you grow up and realize that you do help others, you can make a difference, even though it won’t happen every time, and that the only choice available is to continue to try your best every time, you will have served a purpose.

Life may be a toilet, but it’s better to look at it as a toilet half full.  Helping one person, one life, is still worthwhile, even if you can’t save them all.  Now when can I get my honorary degree?

When the jury came back with guilty x 14 against Raj Rajaratnam, billionaire head of the Galleon hedgefund, there was no shortage of folks thrilled that another fatcat inside trader was taken down.  A  juror described their deliberations:

We all wanted to give Raj the benefit of the doubt. I wanted to believe he was an honest man. How could someone so smart and rich already be involved in something so horrendous?

– Leila Gonzalez Gorman, a 44-year-old teacher from Westchester County, who served on the jury that found Raj Rajaratnam guilty of insider trading and conspiracy.

The  defense team (and team is used in the sense of a football team) led by combative Akin Gump lawyer John Dowd, whose  fingers remained spry despite his years of experience. is estimated to have set Raj back about $40 million.  I know plenty of lawyers who could have lost this case for half that.  The best Dowd could come up with in summation was:

Summing up his defense of Galleon Group founder Raj Rajaratnam, attorney John Dowd tried to channel the late Johnnie Cochran, telling jurors: “If it’s public, you must acquit.”

This is why old, white shoe lawyers are not allowed to rap.

But there’s one question that hasn’t managed to get a whole lot of play here, largely because it’s been hidden behind our old friend, “common sense,” which covers up myriad gaps in thinking.  Who is harmed by insider trading?

The idea is that some guy has information that you and me, regular schmoes on the street, do not.  When he trades stock because he knows what we don’t, it’s unfair.   Stephen Bainbridge explains:

WSJ reporter Jonathan Cheng breathlessly reported that:

In scoring their biggest insider-trading victory in a generation, regulators have a message for a nation of nervous individual investors: When it comes to information about stocks, the playing field is getting a little more level.

The little guy isn’t so sure.

Piffle. Insider trading does not harm investors — little or otherwise. [Bainbridge shameless marketing effort deleted].

The balance of Bainbridge’s explanation is so prolix as to require FDA approval and a warning about reading while driving, but I can paraphrase.  People buying/selling at the time some insider is buying/selling will do so anyway, as there are always shares available to be bought/sold, so the fact that some insider is making money has no causal affect on the little guy’s losing anything. He would have lost regardless. He’s got more, but I fell asleep while reading. If you can stay awake, more power to you.

The bottom line is that we’re all insiders to some extent.  We know stuff that someone else doesn’t, and use it every day of our lives to our benefit if we can.  Most of us lack information of the sort that can produce financial gains, much to our chagrin.  So in an over-abundance of Schadenfreude, we relish laws that make it illegal for rich guys like Raj to use what they know to make money when we can’t.  In essence, the argument is that if we can’t do it, neither can you.

Who are we kidding?  It’s used every day by everyone who can, ourselves included.  We use innate intelligence, education, observation to make decisions based on things that others can’t see.  If we’re lucky, we talk to people who know more about something than we do and learn from them, using the bit of knowledge gained.

This isn’t just the big, fat rich guy. This is the guy on the loading dock who sees widgets flying out the bay and realizes, “hey, my company is on to something this time,” and loads up.  You aren’t watching the loading dock so you don’t know this, but the guy loading pallets does.  If you’re selling stock because you think the widgets suck, while he’s buying up the stock you’re selling, you feel cheated.  But nobody made you sell, or decide to sell at that particular moment.  You had your reason, maybe your erroneous assessment or maybe your need for some ready cash to buy that shiny new iPad.  He just knew more than you did.

It’s called information asymmetry by the jargonistas, and an unlevel playing field by the prosecutors.  As if there is ever a level playing field.  As if there is anything wrong with the fact that the playing field isn’t quite level.  We know, assuming we aren’t complete morons, that there are people who are paying far closer attention to industries, companies, and who are trained in how to interpret signs and information, who will always be a step ahead of us.

Knowing this, we try to ride their coattails whenever possible, because we know that we aren’t in the loop and will always be lagging behind those who know more than we do.  Anyone who thinks otherwise should put in his request for a job on a collective farm immediately, so he gets a room with a great view.

The government, feeding upon populist feeling that people who know more shouldn’t have a leg up on the rest of us, made it a crime to trade stock on knowing things that is not public information.  As Preet Bharara knows, just as Rudy Giuliani knew before him, this is great for business and a real career maker, play to the anger of the mob.

After successfully prosecuting Raj Rajaratnam for insider trading, Southern District U.S. Attorney Preet Bharara issued a statement, saying that “Unlawful insider trading should be offensive to everyone who believes in, and relies on, the market.”

Do people really “believe in” the market?  It sounds like a religion, or perhaps a cult.  To those who pray to money, it’s probably a good analogy, but to the rest of us, it’s a tool to be used at best in the hope that we end up with greater financial security than not.  For anyone who lived through the dot com crash, who watched ten years of savings disappear overnight because we “believed” that the market must know something or they wouldn’t be bidding up shares of garage companies to Olympian heights, we learned a lesson about relying on the market.  Don’t.  It’s a game played by others, and the best we can hope for is to find ourselves on the right side of the game at the right moment.

But the government has made it a crime for people to play the game better than others, because it makes the losers of the game feel better.  As for not so poor Raj, he knew that by playing the game too well, he could go to prison.  The fact that it shouldn’t be a crime doesn’t make it acceptable to break the law.  That’s the sucky part of the social contract, but still one to which we must adhere.

Raj will join the ranks of the immortals, like Boesky and Milken, but your house is still worth half of what is was five years ago, your IRA is still in the toilet and your job is on a plane to Bangalore.  Feel better yet?

It only takes  one year of law school to know all you really need to know about the law, which is what makes Daniel Fischer qualified to pronounce the obvious :  People don’t really need lawyers.  Even computers can do it, at $249 a pop.

In 2008 Missouri residents Gerald T. Ardey and Chad M. Ferrell decided to form a remodeling company. They paid an online service called LegalZoom $249 to draw up the paperwork. By all accounts, they have no complaints about the documents.

But Ardley and Ferrell want money from LegalZoom anyway. They have sued the Los Angeles provider of online legal documents on behalf of themselves and every other LegalZoom customer in Missouri for triple what they paid, under the theory the service has engaged in the unauthorized practice of law.

A set up?  Apparently so, as the greedy lawyers descended like vultures on the treble damage carcass.

Like most class actions, this is about the money. Specifically, the treble damages and presumably rich fees available to the lawyers who are really behind this case. But there’s another wrinkle to the LegalZoom litigation: By suing an automated document-preparation firm, these lawyers are trying to protect themselves from competition.

A double whammy, not only the big payday from a class action, but the death of the inexpensive alternative that could put the avaricious out on the street.  Evil lawyers. 

Fischer invokes the name of USC lawprof Gillian Hadfield, who has sought ways for the law to be less expensive, more accessible to ordinary people.  

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs.

But Hadfield isn’t a hater.  She’s a lover, a person who seeks to find a way to solve a dilemma, not merely point the finger of blame at the evildoer and encourage the citizenry to storm the castle with torches a’blazing.  Fischer, on the other hand, just hates lawyers, and ascribes all manner of venal intent.

As proof, Fischer points to the ABA’s effort to redraft the rules as regards the unauthorized practice of law.

Among other things, it would prohibit non-lawyers from “giving advice or counsel to persons as to their legal rights or responsibilities,” and “selecting, drafting or completing legal documents or agreements that affect the legal rights of a person.”

That could stifle the competition between lawyers and nonlawyers, for sure.  And really, isn’t the law all about enhancing competition with non-lawyers, because, you know, law is easy.

The ABA and lawyers like Van Ronzalen maintain that unauthorized practice of law rules are there to protect consumers. But the FTC, in its 2002 letter, said there is “no evidence” consumers are hurt by competition for legal services in areas such as real estate transactions, wills and trusts, taxes, labor regulations and investments.

No evidence?  I bet this comes as a surprise to all those litigants fighting over the busted homes deals, will contests, IRS jeopardy assessments and brokerage houses wasting investments accounts in bad buys and heavy fees. 

Gillian Hadfield tries to stretch the boundaries to find a way that the law isn’t financially out of reach for regular folks who do regular things that the law, in the great wisdom of legislators, judges and, yes, lawyers, touches.  There isn’t much that happens to people every day that doesn’t come within the law’s tentacles, and that presents a problem.  But Hadfield isn’t foolish about it, and tests her ideas against the reality that disputes do arise, legal problems do exist, and people, left to their own devices, do end up getting horribly entangled in very real legal issues.  She seeks a way out, but doesn’t rush blindly in the abyss.

Daniel Fischer shuts his eyes and takes a leap.  Fischer’s article should appeal well to his target audience, people who want legal services without having to pay without the slightest thought of what it means to be on the receiving end of an unpleasant transaction.  Nobody needs lawyers when there’s no problem at the end of the rainbow.  When there is, all the hand-wringing, second-guessing and teeth-gnashing in the world won’t let a person go back and do it right the first time.

In a sense, criminal defense lawyers have no horse in this race, as LegalZoom can’t touch my business and has no interest in trying.  If it was just about money, then I wouldn’t waste a second of my time worrying about them stealing business from those lawyers whose livelihoods depend on real estate closings or drafting wills.  Hey, let the other guy fight for his bread and butter. It’s not my problem.

But being a lawyer means that we don’t suspend our concern for others when there’s no discernible hit on our own wallets.  At least that’s what it’s supposed to mean.  It makes a whole lot of difference to nice young family on the corner whether they understand and appreciate why they should choose Uncle Sam rather than good buddy Lou (or vice versa) to be the executor of their Last Will and Testament, rather than have their sweet children learn after they’re gone that they won’t be going to college. 

There is no question but that Hadfield is right, that we need to address the unaffordability problem, given the pervasiveness of the law in everyday life.  This is a discussion that must be had.  But we don’t need simplistic fools pandering to the angry and ignorant.

Ironically, Daniel Fischer may well prove to be one of the best shills for greedy lawyers around, since the natural by-product of his position will be massive, needless, litigation down the road, when all the computer driven papers turn out to fail to serve their purpose, fail to protect people from themselves, and generate this great avalanche of lawsuits that will suffice to pay for a new car for every lawyer in America.

And all of this could be avoided with a little bit of thought and a lot less simple-minded anti-lawyer demagoguery. 

In the law, there have been certain very specific places which no court, no judge, is bold enough to breech.  The front door of a person’s home, his castle, was one such place.  No more.

The Indiana Supreme Court, in a 3-2 decision, has taken the state of law since the King John’s signing of the Magna Carta in 1215 and decide that it no longer serves our “modern” world.  In Barnes v. State, the court held that the sanctity of our homes is a thing of the past.

We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest— as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (“But in arrest situations that are often ripe for rapid escalation, one‘s  ‘measured‘ response may fast become excessive.”).

Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in “hot pursuit” of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.

[T]he common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on . . . the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

In Miller v. United States, 357 U.S. 301, 313–14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

Id. at 307. The same is no less true today and applies equally to forces of the State.

It’s one thing to speak from afar, relying on the reporting of others.  It’s another to be there, to experience it for oneself.  That’s why this comment by Randy, a juror in Dentrell Deaner’s murder case, is so significant.  (H/T to @hotspringsatty for pointing it out).  I have confirmed with Randy, who prefers to keep his surname out of the internet whirlwind, that he was, indeed, a juror on the case. (H/T  Jamison Koehler for putting me in touch with Randy).

Here’s what he had to say.

Right now, I am looking at a letter adressed to me from Judge William M. Jackson, thanking me for my jury service on the Deaner trial….and I feel obliged to set the record straight as just that “indsider”. Additionally, I’d like to thank the judge for his extreme tolerance of Mr Rakofsky’s antics…..to those of us on the jury, we were stupified and, having sat on many trials in the past myself, Judge Jackson gave Mr Rakofsky as much “leash” as was professionally possible. It’s Mr Rakofsky’s own fault, and frankly narcissism, that allowed him to “hang” himself with that leash and draw a mistrial.

It was obvious from the opening statements that Mr Rakofsky was way out of his league and poorly trained for a proper court defense. Whatever momentary empathy any of us on the jury may have felt for Mr Rakofsky’s absolute ineptitude, were quickly absolved by our knowledge that a young man’s entire life was at stake. The absolute amateurish antics displayed by Mr Rakofsky were repulsive and oddly narcissistic. He had very little command of the law, and now hearing that Mr Deaner’s family actually hired him is truly upsetting. Most of us assumed that this was a court ordered public defender that may just have been too young and overwhelmed by a huge docket of cases to put together a proper defence.

Additionally, the quotes above from Rakofsky [as well as the Facebook entries] make my stomach absolutely turn. His poor performace was much much more than a lack of training and time….he truly had no grasp for how to handle a proper criminal court trial and it was obvious to EVERYONE in the court that he had trouble even putting a proper thought together, often repeating and repeating himself over and over to the audible gasps from the jury. Now, hearing his responses on facebook, I am truly repulsed that this “attorney” could defend his own actions while he wasted the time of the court, those of us on the jury, the money of DC taxpayers and most importatly jeopardized the life of the person he was defending. It’s an absolute travesty and mockery of the fragile system that protects ALL of our rights.

The funny thing is that deeper digging is a by-product of Rakofsky’s decision to take a bad situation and make it stupendously worse.  From afar, he looked horrible.  He looked even worse close-up.  And Randy, the juror, saw him as close-up at it comes.  Randy has more to say, but is awaiting the court’s approval (he just wants to be sure) before doing so.

My bit of fatherly advice: If you don’t want to become the poster boy for legal incompetence and deception, don’t be incompetent or deceptive.  Commencing a ridiculous lawsuit is never a good answer.

You would think it bad enough for a young lawyer to become the poster boy for incompetence and deception.  Not for Joseph Rakofsky, whose hubris similarly exceeds his grasp.  After getting slammed by, well, everyone, he’s thought long and hard.  Very long and hard.  And came up with a plan.  Rakofsky v. Internet.

The rote expectation of insipid lawyers is that by bringing suit, something will come of it if for no other reason than to avoid whatever minor annoyance even the most frivolous action brings.  Sometimes it works.  Not this time, however.  Rakofsky has sued 74 defendants, ranging from the Washington Post to the American Bar Association to a who’s who of the blawgosphere.  Plans are in the works for the biggest blawger party ever, to be held in New York as the venue of choice.

Blawgers who weren’t sued are now scrambling, feeling embarrassed for not having made the cut.  Not only do they not care about being named as defendants, but they don’t want to be left off the list.

Sadly, many of the named defendants will never get a chance to play.  The substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had Rakofsky’s lawyer done some homework, he would learn that New York’s long arm statute expressly excludes defamation.  The out-of-state defendants are not amenable to suit in New York.  Perhaps they will traverse the nation, even the continent since they’ve named Canadians as well, to vigorously pursue this action.  Perhaps not.

The first question that spread around the room was whether Rakofsky was pro se, as it was hard to imagine that any lawyer would take such a frivolous case.  The answer is that Rakofsky was represented by a lawyer named Richard Borzouye, who gives the same 14 Wall Street office address used by Rakofsky and operated by Regus.

Far too much is known about Rakofsky already, his claims of having “founded []his firm on a commitment to set the standard for criminal defense in New York City,” which would have flown better had he been admitted to practice law in New York, or his “extensive and intricate understanding of legal procedures and loopholes, as well as federal and state trial experience,” which would have made more sense if he had any trial experience. 

So eyes turned to Borzouye, wondering who would have taken on such a frivolous case and drafted such a ridiculous (and procedurally defective) complaint?  He appears to be licensed to practice law in New York, though the “bar code,” a phrase not typically used in New York (outside of a supermarket setting), doesn’t reflect his New York attorney registration number. 

Borzouye doesn’t have quite the extensive web presence that Rakofsky had, before he deleted as much as he could following his self-immolation, but his advertising  on CraigsList and in the  Pennysaver provides some insight.

I practice criminal law in New York and Federal Court (SDNY & EDNY), covering all 5 boroughs: Manhattan, Bronx, Brooklyn, Queens, Staten Island and Long Island & Westchester as well. I am a young, clever, head strong, courageous, hard-nosed warrior, bulldog, passionate, champion, no-nonsense, maverick Litigator who will never stop fighting for you and who knows how the system works. I am a Former 18-B Panel Attorney and I can handle all felonies & misdemeanors with the level of excellence that you deserve in State & Federal Court ranging from violent & capital crimes to White Collar, RICO (civil also), DWI, Fraud (mail, wire, bank), Theft (grand larceny, embezzlement, etc), Drugs/Narcotics, Gangs, Domestic Violence, Sex Crimes, Battery, Robbery, Burglary, Firearms & Weapons, Computer Crimes, Appeals, Probation Violations & Early Termination of Probation. If you or a loved one have been arrested, awaiting arraignment or currently being investigated, Call the Law Offices of RICHARD D. BORZOUYE`, ESQ., 24/7 at (212) 618-1469 at our Wall Street Headquarters during business hours (8:30 am-5:30 pm) or (917) 399-4949 afterwards. We’re right across the street from the New York Stock Exchange. All calls are held strictly confidential. I offer flexible payment plans at a fair hourly rate and I will ferociously defend you at all times. Hire an elite Wall Street Trial Attorney who will not be intimidated by overzealous prosecutors or tough judges, and nor should you. I’M ON YOUR SIDE!!! Representation for federal cases nationwide!

There’s no doubt in my mind that somebody, maybe a whole lot of somebodies, are going to burn me bad for doing what I’m about to do, but there’s a point to be made here and I can’t figure out a better way to make it then to pull down my drawers and show what I’ve got.  Whoever is going to scream that I’m bragging, bite me. If anything, this is proof of meaninglessness, even if its makes you feel underappreciated.

I’ve been pretty hard lately on legal marketers and SEO types who are hard-selling ways to crank up your numbers, drawing the unquantifiable inference that numbers of readers somehow translates into huge wealth and prestige as a lawyer.  I say it just ain’t so.  I’m told by the cheerleaders that I’m wrong, an idiot, a liar.  I’m called a “notorious asshole” by the marketers, who just can’t stand the fact that I keep saying bad things about them and their business. 

So here goes.  Yesterday was a fairly normal day around SJ, with three posts.  Here’s the top secret inside baseball stats from my team of crack of highly-paid accountants in the backroom.
 

An old friend of mine from the Bronx used to do some schtick where he told people he was ten feet tall: five feet of lawyer standing atop a five foot high pile of money.  I bet Joe Frank Garza knows exactly what he meant.

Joe Frank Garza, a former district attorney in South Texas, was sentenced Friday to 180 days in jails for using money seized from drug busts to boost his  pay and the pay of other employees in his office.

Garza was ordered to repay $2 million that he misappropriated. He earlier pleaded guilty to the crime.

You mean it wasn’t his to use however he wanted?  Well, that must have been embarrassing, and really paints slush funds in a negative light.

Asset forfeiture is the  sink hole of law enforcement.  Sure, it’s described sweetly as “taking the profit out of crime,” by seizing back those nasty ill-gotten gains of crime.  Who could possibly against that?  Of course, the devil (as usual) is in the details, where forfeiture is used as leverage to get people to walk away from baseless seizures upon pain of prosecution, or that probable cause is all that’s needed for the smiling officer to take whatever he can grab and walk away with.

The putative use for such swag is to bolster law enforcement efforts, to keep those mother-rapers and father-rapers from doing in the wimmenfolk.  Certainly we want to protect the wimminfolk, right?  Except where exactly the money goes is rarely known.  Heck, most of the time, no one even knows just how much money is held in those secret bank accounts.  Much as they would love to say, it would reveal their secret law enforcement methods to the bad guys, and we can’t have that.

So how did Joe Frank manage to take these seized funds and make himself incredibly handsome? 

Legislation is pending in Texas that would restrict law enforcement officers’ ability to use seized assets for their personal benefit. (Here’s a link to the bill.)

You see, if there is no law specifically prohibiting a prosecutor or sheriff from using the seized assets for, say, drinks for the boys, a smallish tank, paying off the bag men, how would anybody know it was wrong?  Seriously, isn’t this a mistake pretty much any prosecutor could make?

Yet Garza’s enjoyment of forfeited funds should not be seen as a condemnation of the system that both grabs assets from anybody who can’t fight back and puts it into the hands of the easily tempted.

But according to this report from the Department of Justice, asset forfeiture laws play a key part in fighting crime by “depriving criminals of the proceeds of illegal activity . . .and restoring property to victims.”

Fine purposes indeed.  So when you happen to spy the next ten foot tall prosecutor, remember that he’s keeping America safe, even if he does look damn good for a five foot tall lawyer.

If you only read the faux small law columns at Above the Law, you would assume that anyone dragging them into court would be because of murder by stupidity.  But the real beef, the only beef, is in revealing the sordid details of the law.  Whether judicial hotties or nasty lawyers, this is how Lat made his mark. 

As Lat went on to build his empire, his number 2, Elie Mystal, took up the slack.  The problem with slack, of course, is that it sometimes results in, well, mistakes. And apparently Elie made one. From Jeff Bercovici at Forbes :

Getting publicly accused of committing rape is bad enough. Getting publicly accused of committing multiple rapes is considerably worse. Is the difference between the first and the second worth $50 million?

That’s how much Chicago attorney Meanith Huon is seeking in damages from Above The Law, a legal-industry gossip blog, and its parent company, Breaking Media.

Fortunately for former Newark, New Jersey, AUSA cum media mogul Lat, also named as a defendant, it’s just chump change. 

At issue is a story published May 6, 2010 — the suit was filed exactly one year later to fall within the statute of limitations — titled “Rape Potpourri.”The author, Elie Mystal, linked to a story about Huon, who was arrested and charged with sexual assault and unlawful restraint after a woman accused him of picking her up under false pretenses — he allegedly told her he was recruiting models to do alcohol promotions — and groping her in a moving car.

If ever there was a lawyer story custom made for the lurid-junkies, this was it.  But that wasn’t good enough for Elie, who put to his his mad-internet skills.

“And this, people, is why God invented Google,” wrote Mystal. “Had the victim Googled Huon, she would have found stories like this.” Mystal then linked to two other articles, one about Huon being charged with sexual assault and another about him being charged with cyber-stalking.

In 8.2 seconds, Huon went from being model groper to super-creep.

What Mystal failed to make clear — apparently because he didn’t realize it — was that all three articles were about the same incident and victim.

Harvard. Harvard Law.  And he didn’t realize that all three articles were about the same “victim”?  Don’t they teach them anything about cite-checking?

And the obligatory net-net:  Meanith Huon was found not guilty of sexual assault.

I’m a regular reader and big fan of Above the Law, even though Lat and Elie think I hate it because I occasionally have unpleasant things to say about some of the mind-numblingly stupid stuff that gets posted.  Still, it gives me all the sordid details of lawyer-life I would never otherwise know about, and insight into the things that concern both Biglaw associate wannabes and those who pretend that they didn’t waste three years of their life by going to law school.  They don’t come here too often, so I would never know about them otherwise.

But when your media conglomerate is grounded in lurid stories of legal licentiousness. you really need to get your facts straight.  You just can’t have a blast calling lawyers serial rapists because it makes interesting copy.  One of the things that I’ve noted at ATL is the inability to distinguish between things that are fair game for snark, and really serious matters that should be the subject of trifles.  They tend to treat everything like it’s a big joke, and invariably a joke with some infantile sexual connotation.

Is it all funny as can be?  Not necessarily.  We can all enjoy a good laugh.  But grownups use their heads to know when to draw the line, when something is serious, hurtful and just not a good topic for humor.

Elie, I realize that the soul of ATL is all about making a joke out of anything sexual involving lawyers.  I get it, and I understand that you’re catering to a huge following of law-babies who are titillated by the knowledge that there are other lawyers who have it worse than they do.  I really do get it.

But raising allegations of sexual assault against a lawyer, just for the opportunity to crack funny, actually involves a real person.  If you have to turn it into fodder for the sexually frustrated, at least do the legwork to get it right.  Don’t smear lawyers, actually anyone, if you can’t be bothered with making sure that your info is at minimum reasonably accurate.

That said, this complaint is going nowhere.  There was no malice, just laziness.  Whether there was probable cause for the cops to arrest, and the prosecutors to try, these allegations against Huon is unclear.  Huon argued the sex was consensual, and  he’s suing the cops for going low in building their case against him:

Huon’s suit, filed in federal court in Chicago, alleges that the state’s attorney’s office put an illegal wiretap on his cell phone and submitted false affidavits to obtain a search warrant of his home computers.

The lawsuit charges false arrest, malicious prosecution, intentional infliction of emotional distress, false imprisonment, defamation, civil conspiracy, and violations of due process, among others.

Maybe Huon’s got the goods. Maybe not.  In the meantime, maybe Elie and Lat will consider the possibility that not everything that can be the target of their ridicule is worth pursuing, even if there is no liability.  Or, just hang around waiting for some judge to take the bench with his fly down and go to town on it.  Because really, isn’t this what the law is all about?

No, they don’t drive around campus in Eldorados with leopard-skin landau roofs and Playboy bunny rear windows.  They don’t walk the quad in orange velour suits, wide-brimmed hats and silver-tipped canes.  It’s not that they have “style” when they pimp.  Still, they pimp.

Over at  PrawfsBlawg, lawprof Eric Johnson faces an anonymous colleague who left a comment,

“I would appreciate it if Prawfs didn’t invite guest commentators who use this blog to pimp their work.”

First of all, let’s pick a slightly more neutral term: Self-promotion. Am I guilty of that? Yes. I think it’s fair to call what I was doing “engaging in a scholarly dialog,” but if you want to call it self-promotion, I won’t argue with that at all.

Short of a mea culpa, but a non-denial denial is better than nothing.  Frankly, I thought he looked way cooler when seen as a pimp, but that’s just me.  I tend to prefer straight talk over sanitized language, but not everyone sees it that way.

So, I engage in self-promotion.

Some people, when they self-promote on PrawfsBlawg, toss in an embarrassed aside, such as “forgive the shameless self promotion.” I’ve skipped those pleasantries. Perhaps that shows a lack of urbanity on my part. But I just see myself as a realist.

We live in a world of vigorous self-promotion. Tiger Woods wears a hat with a logo made out of his own initials. I mean, for crying out loud, if that’s okay, how can I have done wrong by mentioning my new article and linking to it?

I have no clue how far Johnson can drive a small, white, dimpled ball, but I’m betting it’s less than 300 yards, undermining his analogy from the start.  On top of that, he’s not in the business of selling hats, as if anyone would buy a golf hat with a stylized EJ on it.

That’s not me. I say: Comment on, AnonProf. Dan called your anonymous comment “snarky and craven.” I won’t. But I would call it ironic. You see, in our online world, millions of people, like me, are putting themselves out there with their blogs, homepages, Twitter, Facebook, online CVs, bio pages, and the like. If that’s a breakdown in civility, then, you’d have to admit, so too is the upwelling of anonymous potshots. Self-promotion and unsigned flaming are the ying-yang of the digital world. Now that I think about it, I suppose they bring one another into balance.

And then there’s the Slackoisie defense: I may be a pimp self-promoter, but anonymous attackers are ugly and dress funny.  If “unsigned flaming” is horrible, does that make self-promotion less troubling?

Yet, Eric Johnson shouldn’t have been so deeply wounded by the anonymous comment.  Not for the reasons he states, which would have gotten his client convicted before lunch, but because he’s just not a pimp.  The foundation of the complaint is misguided.

When a lawprof finds a subject to which he commits an enormous amount of time and $100,000 of  law students’ tuition loans (the stuff they thought was being spent on their education), it’s because he takes a sincere scholarly interest in the subject, and believes others will as well.  Having done so, produced article and submitted it to a law review, the place where ideas go to die, there is a burning sensation in his head to engage his colleagues about his efforts.  Guys, I have this really cool idea and did a whole bunch of work on it; whadda you think?

The lawprof isn’t playing the five year old on the high diving board, screaming, Mommy, look at me.  He’s asking his friends if they want to come out and play.  He’s asking his friends if they think he dresses funny.  He’s asking the girl of his dreams whether she will give him a whirl on the dance floor.  And, in a benign, sanitized way, the chick may tell him to take a hike.

Writing about the object of scholarly effort isn’t self-promotion at all, even though some may choose to call it mean names.  It’s an invitation for peer review, both positive and negative, in this new-fangled medium that allows for real-time discussion or real-time ideas.  If there’s a flaw in the process at all, it’s that lawprofs continue to push out scholarly work for law reviews rather than blawg posts at all, but tradition (and grasping at tenure) is hard to break.

In the comments to this post, Orin Kerr, snarky and craven aficionado that he is, makes a point:

This comment thread reminds me of a fantastic website that I urge you to visit.

Posted by: Orin Kerr | May 9, 2011 4:02:57 PM

Now that, dear lawprofs, is the way to pimp. And Kerr ought to know, as Orin’s wheels show.



Many use blogs to flawg their self-importance, mostly devoid of substance and without a shred of shame.  Self-promotion on the internet is rampant, hyping things unworthy of attention, manufacturing descriptions that exaggerate value and importance, deceiving. 

Posting about one’s scholarship on a blawg, on the other hand, is offering a subject of sincere interest by a writer to others for discussion, whether positive or negative.  This is the highest and best use of the blawgosphere, to engage in thoughtful conversation with one’s peers about things that matter, at least to the writer. 

Doesn’t interest any particular reader?  That’s always going to be the case. Not every reader is going to share the writer’s interests.  Not everybody likes chocolate either.  That’s cool.  Nobody forces anyone to read stuff that bores them.  But similarly, readers get no vote on what interests the writer, and the when the writer has the keys to the blogging kingdom, then it’s his call as to what he finds sufficiently interesting to write about.  The blawgosphere is not a democracy.  It is, however, a place for peer review.  And that’s exactly how it should be.

Sorry, Eric Johnson, you are no pimp.  Write on, brother.