The  strange case of Queens District Attorney Richard Brown going after Supreme Court Justice Joel Blumenthal for, of all the gall, questioning the propriety of potentially manipulating defendants into giving statements before counsel is assigned, has gotten even stranger. Much stranger.

Brown is trying to preemptively stop Blumenthal from ruling on a pre-trial motion to suppress statements via mandamus, and brought out the big gun by engaging former New York Court of Appeals Judge Joseph Bellacosa as his expert to shoot down the opinion of lawprof Ellen Yaroshefsky.  Aside from the laying on the judge-thing just a bit too thick, not too big a deal.

But Judge Bellacosa, who was well-regarded during his tenure on the big bench from 1987 through 2000, has shed whatever judicial temperament he once possessed, in  reportedly raised in Ridgewood section, at the Queens border, which would make his Bed-Sty claim not only a bit specious, but suggest that the gang down the street might take umbrage at his claim to toughness.  The Bed-Sty view of Ridgewood is that people there dress funny, perhaps meaning “they wear black robes.”

But then it gets worse.  In closing, Bellacosa writes:

With No Due Respect,

Joseph W. Bellacosa

My disdain for the adversarial exuberance of your oxymoronically labeled amicus curiae brief, in this particular regard and in other respects I have noted in this letter, is pungent; no less so is my profound disappointment with those who wittingly or unwittingly signed onto your manifestly unfriendly letter.

It was bench trial day, with two teams doing a bench trial of a federal drug case going head to head.  They are wearing their suits and ties, suits and heels, the uniform of lawyers.  They have legal pads in hands and serious looks on their faces.  It’s war.

My  job at ITAP was to play the role of judge until the trial was over, then to evaluate their effort, providing guidance as to what they did well and what needed improvement.  The best part of bench trial day is that they are in roll as lawyers from the moment the “judge” walks into the room until the end of the government’s rebuttal summation.  They are delightfully serious. 

After two trials, I was astounded by what a great job the law students did.  No, not perfect, with some flawed efforts, particularly with explaining their objections, refreshing recollections and using prior inconsistent statements.  But then again, these were as good as, if not better, than many real trials.

After the day was done, as I walked in the cold toward the subway, I found myself going stride for stride with one of the students in the program.  We talked as we walked.  He told me that he’s finished in a semester, and he concerned.  He’s “littered” New York with resumes to no avail.

“So what are you going to do?”

“I’ll get a job.”

“What job?”

“Something. Anything.  Law if I can.  McDonalds if I have to. But I will work.”

I offered some suggestions, though I don’t know how viable they were.  It was all I could do.  He asked me if I could use him, but I couldn’t. 

But I believe him.  I can’t say whether his attitude reflects the sort of student who goes out for ITAP or not, but I expect that the same student who wants to leave law school capable of being a lawyer is the type of student who will somehow make a place for himself in the law.  Cardozo Law School isn’t the elite in the City of New York, but I would take a kid who can try a case over the name on a diploma any day.

I just thought anyone who is considering law school, or in need of a lawyer, ought to know.  This student will succeed, if for no other reason than his dedication to being a lawyer.  He may have nowhere to go at the moment, but he’ll find a place for himself.  He won’t sit there and whine about it.

The aftershock is to be anticipated.  As the  New York Times says, politicians of all stripes are concerned for their safety.  Who wouldn’t be?

“In each district you represent your share of unstable people,” Representative Jack Kingston, Republican of Georgia, said Sunday as he and other House members pulled for the recovery of Representative Gabrielle Giffords and struggled with how to respond to the shootings. “Now you are aware that they do show up at your town hall meetings and maybe they are not all harmless.”

Lawmakers also live the most public of lives and, like Ms. Giffords, heavily promote their local events to encourage people to attend. They say that they cannot retreat behind police escorts and security barriers.

Elected officials need to meet the people, both from their institutional need to hear what their constituents have to say as well as their institutional need to make people want to re-elect them.  It’s one of the few aspects of political life that has any decent balance.  Of course, between media and corporate money, that balance may not last much longer, but that’s a separate issue.

Three reactions may well be in the offing as a result of the tragedy, which like most compels people to do something, anything, regardless of whether it solves the problem or creates more problems than it solves.  Americans are a people of action.  We like action.  We respect action, regardless of whether it’s the right action.  Why else would people chant the Nike slogan?

1.  Elected officials will begin the process of surrounding themselves with protection.  Whether local cops or capital security, perhaps even a new department within Homeland Security to protect officials from those who would do them harm.  We have a lot of elected officials, and protecting them would be a monumental endeavor, as they are by definition public people and they tend to go back to the states/districts from time to time. 

This would likely be coupled with regulations to facilitate their movement apart from the groundlings, such as not being forced to wait on airport security lines.  Of course, there’s no particularly good reason for a congressman to stand on an airport security line from a security perspective (heck, if they were going to blow something up, the capital rotunda would be a more more impressive choice).  But it’s critically important that they suffer they same indignities they impose on the rest of us, so they have a clue how miserable they are making life for everyone else.

2.  Criminalizing the very threat of threats.  One idea being floated is to create new federal crimes for threatening elected officials.  From a security standpoint, this would facilitate protection by giving law enforcement a tool to pinch a potential attacker before the notion of an actual attack is even a twinkle in his eyes.  But then again, rhetoric being what it is, much is said and written for impact, to make a point, to emphasize a belief and position, using words that might suggest a more radical approach in the real world when its purpose and intention is merely to persuade and inspire the slugs who occupy the easy chairs to get off their duff.

But the potential new federal crime of Hyperbole in the First Degree serves less to identify those who might actually do harm than to stifle expression at the core of democracy.  Words are necessary to convey messages, and they are often messy and over the top.  It’s not to say that inflammatory or vitriolic rhetoric is a joy of political expression, but that criminalizing it would be the death of political dissent. 

We might end up with nicer, calmer politics, but at the expense of honest dissent.  The use of subtle, nuanced discussion to make our positions clear, unfortunately, ended when William F. Buckley’s Firing Line was canceled.  Heck, he would have been forced to change the title of his show, given how it incites violence.

3.  The worst of the potential reactions is that elected officials feel constrained to keep their opinions to themselves.

“I know that I am considered to be a bit more confrontational and outspoken,” said Representative Maxine Waters, Democrat of California, “and I’ve lived with that all of my life, that my political philosophy and my willingness to speak up and speak out kind of creates risk and some danger. I accept that as part of my job.”

It is part of the job.  If elected officials, or candidates for political office, cease speaking their minds, leaving us with homogenized, sweet-appearing shells of people, how would we know for sure that they’re not a witch?  We need them to speak, loudly and clearly, if we’re to know who we’re putting in the seat to vote on our behalf.  Anything that stifles their open expression of their positions, or gives them a free pass to keep it to themselves for their own safety, denies us the opportunity to make intelligent choices.  Of course, to the extent we ever make intelligent choices.

A different idea, perhaps, should be considered.  One thing I’ve come to realize by writing this blawg and reading the comments people leave behind is that there are far, far more people out there who are within the range of DSM-IV than I would have believed.  Perhaps nutjobs tend to like tapping on keyboards more than normal folks, but they are certainly out there, and their ability to congregate and work themselves up online amongst themselves empowers them to believe that they aren’t nearly as crazy as others say, and have more support than they would have believe, sitting at home by themselves cooking up wild conspiracies.

Granted, acts of violence by people with mental illness against elected officials are still extremely rare.  It’s not like there’s an epidemic happening before our eyes.  But the solution to stopping this violence isn’t in criminalizing the world of the rest of us, or undermined basic tenets of democracy.  How about identifying those with mental illness and providing them treatment?  How about making sure that people whose minds struggle to function in a nonviolent way, who see harm as a viable means of expression, receive the care they desperately need?

Of course, it’s hardly as bold a reaction to a terrible tragedy than, say, establishing a new congressional protection service, or passing a slew of laws criminalizing the use of words that could be misinterpreted to suggest radical change.  But it might help to address the cause of the problem, and actually do some good in the process. 

No solution will ever eliminate all people with mental illness who, through the psychotic prism of their mind, see violence as the answer.  Nor will criminalizing speech, nor even providing round the clock protective services that isolate public officials from those they promised to represent.  But providing treatment to the mentally ill might actually do some good in the process, even if those receiving treatment aren’t inclined to pick up a gun and start shooting. 

If we need to have a knee-jerk reaction to this tragedy, would it be so terrible to have one that actually did some good for people? 

Update:  Via Eugene Volokh, my very own representative, Peter King, has come up with a new law!

New York Republican Rep. Peter King said Tuesday that he will introduce legislation to ban the carrying of any firearm within 1,000 feet of what he described as “high-profile government officials.” …

And hilarity ensues.  Aside from the over-abundant vagaries (who is a “high-profile government official”?) and imagine the likelihood of knowing one is within a 1,000 feet in a place lik Penn Station in Manhattan, where half a million people are within 1,000 feet of each other at rush hour, such a law does nothing to protect an official but merely gives the police another law with which to prosecute.  Because murder isn’t good enough?

We love Peter King, always an excellent source of amusement.

There will be wild speculation about why Jared Lee Loughner, 22, decided to shoot 19 people at a Safeway Supermarket.  It may be psychosis. It may be politics. It may be the combination of the two. 

As I know nothing more about this than anyone else reading and hearing reports, I offer the thoughts of Pima County Sheriff Clarence W. Dupnik.



Whether he’s right or wrong about Loughner, his words are worth hearing. 

If you thought the ABA Blawg 100 was silly, then you’ll really hate the Shorty Awards for best twitterer.

(And there’s still room for 35 characters). 

My personal fav twit of the day :

I’ve decided I officially hate the moniker “slackoisie” to describe my millennial sisters and brothers. Condescending, unfair & naccurate.

Tammy Cravit

A very provocative post by Richard Granat at  eLawyering  questions whether LegalZoom will end up as the largest law firm in the United States.

LegalZoom has been beta testing a concept which links its marketing capabilities to a network of law firms that offer legal services under the LegalZoom brand. With some state bar associations accusing LegalZoom of  the unauthorized practice of law,  it might makes sense for the company to seek deeper alliances with networks of attorneys who are able to offer a full and ethically compliant legal service. Solos and small law firms, leveraging off the visibility and prominence of the LegalZoom brand, could reduce their marketing costs and enable these firms to better capture consumers who are part of the “latent legal market”  on the Internet. It could be a win/win for both parties.

One might expect my reaction to be slightly negative to such a suggestion.  After all, I’m no fan of the concept of half-baked self-help, nor unbundled services that glom as much money as the client is willing to cough up while taking no responsibility for helping them out of the hole they’ve dug for themselves.

But I’m not entirely negative about the concept.  Not that the name LegalZoom sounds any better to my ears than its predecessors in cheap, fast legal services, but more along the lines of the Wal-Mart concept.  Lawyers are inaccessible to most people, and lawyers are starving.  It’s a lose/lose at the moment.

Much of the reason, I suspect, is that too much time and effort are put into gaining clients through extraneous means, and the costs of running a well-functioning practice are too high.  If we could eliminate the client acquisition aspect, and at the same time gain beneficial economies of scale, perhaps we could do a heck of a lot better delivering excellent legal representation at a lower cost to clients while maintaining a reasonable level of income to lawyers.  Granat’s win/win.

The fear, of course, is that it won’t end up that way.  The fear is that the lawyers who would hook up with as shabby an outfit as LegalZoom would be the low-renters, doing ever less to earn their buck and delivering the least and worst legal representation possible.  Who would be there to stop them?  Who would toss the losers out on their butt for failing to do right by their clients?  LegalZoom?  Gimme a break.  As long as they get their piece, Robert Shapiro will go on smiling.

Granat raises this problem:

Perhaps there should be a “safe harbor” that enables organization’s like LegalZoom to experiment with new patterns of legal service delivery that could operate for a limited period of time in a specific state, like California, The experience would be evaluated carefully as a basis for rule and policy change. The evaluation would be aimed to see if client’s interests are compromised in any way, and whether the delivered legal service is less expensive, without compromising the quality of legal service.

This involves a risk, but there is no change that doesn’t.  Since we aren’t doing much now to deliver high quality low cost legal services, it seems like a risk worth taking, provided some very serious thought goes into it to make sure that we’ve minimized the risks to clients and leave no one the worse for the experiment.

Instead of creating legal profession regulatory policies that are based on the legal profession’s idea about what is good for the consumer, policy could be based on real experience and facts. Experimentation is good. It leads to change, and in other industries improvement of methods and approaches over a period of time.

This, unfortunately, is where Granat’s plan scares me.  I can understand why he doesn’t want the same, old stodgy ABA types killing any novel concept before it gets half a chance.  Clearly, they’ve made a royal mess of things thus far, and the idea of putting into the official hands of the bar to come up with ways and means to save us from the official hands of the bar seems, well, counterproductive.

But then who?  No really, that’s a question.

There’s no potential client out there who won’t tell you that the cost of legal representation seems unbearably high.  Sometimes they’re right.  It’s unlikely that we will ever be able to provide legal representation that satisfies everyone, or is affordable to everyone, and when it comes to indigent defense, there can be no substitute for providing a competent, and not overworked or uncaring, lawyer to every defendant charged with an offense who is unable to afford counsel.

But that leaves a huge swathe of Americans without access to a lawyer.  Pretending that anybody can be their own lawyer is a sham, which will ultimately end badly.  Pretending that lawyers can fix this on their own is nuts.  We need to open our minds to new concepts that will fulfill the promise of delivery of legal services to all who need at as reasonable a cost as possible. 

It’s not that I have an answer on how to accomplish this, and it’s not that I don’t see the pitfalls and problems some ideas present, but we need to find a new way to do this.  The first step is opening our minds to new approaches.

It was but a few days ago that I  posted about scraping by those who mistakenly feel justified because we’re “on the same team.”  Then I received an email yesterday  from Turk who alerted me to a similarly troubling post over at  Volokh Conspiracy by David Post about lousy legal writing.

Post’s post (don’t blame me, I didn’t name him) included this prefatory paragraph:

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing).

Eugene Volokh then received the following (which I quote again in full — perhaps we’ll get a takedown notice for this?):

Mr. Volokh:

I am Deputy General Counsel for ALM Media Properties, LLC, which owns the copyright in the Legal Intelligencer, including the article by Mr. Shannon Duffy republished in its entirety on your site at:
http://volokh.com/2011/01/07/lousy-legal-writing/

Please consider this email a DMCA takedown notice for the article by Mr. Duffy. While the author claims that the “comment and criticism” aspect of “fair use” entitles him to intentionally copy the entire article from behind the Legal Intelligencer’s paywall and reproduce it on your site, such wholesale copying is, as you surely know, not consistent with fair use. Please remove the article from your website. If you have any questions, please contact me. And as a vocal advocate of clear and grammatical writing, if not copyright laws, Mr. Post might want to consider replacing the semicolon in his first sentence with a period. The semicolon is unnecessary.

Fabio Bertoni
Vice President, Deputy General Counsel
ALM Media, LLC

As Mr. Bertoni notes, I had noted in the original posting that my use of the full text of the article fell within the “comment and criticism” protections of the fair use doctrine, and would protect us against an infringement claim.

It’s the new heroin for the Slackoisie, according to a new study at Ohio State University in conjunction with Brookhaven National Laboratory, as described in an article at PyschCentral.  It’s not just that they want it, but that they need it.  Need it more than food.  Need it more than sex. Need it more than anything else.

Ohio State University scientists found that college students valued boosts to their self-esteem more than any other pleasant activity they were asked about, including sex, favorite foods, drinking alcohol, seeing a best friend or receiving a paycheck.

“It is somewhat surprising how this desire to feel worthy and valuable trumps almost any other pleasant activity you can imagine,” said Brad Bushman, Ph.D., lead author of the research.

“It wouldn’t be correct to say that the study participants were addicted to self-esteem,” Bushman said.

“But they were closer to being addicted to self-esteem than they were to being addicted to any other activity we studied.”

We’ve been told not to smoke or drink during pregnancy for excellent medical reasons.  But what about playing those Baby Einstein DVDs, as if it were that simple?  Parents don’t play them for the sake of the baby (though they fool themselves into believing it), but for their own sake, wanting their spawn to be the bestest ever baby.  From womb onward, they need that validation.

The product of their being reared with the expectation that they will have it all (or as Burger King found would sell more fast food, have it your way) is that they believed it.  I know, crazy, right?

Findings showed that people with a strong sense of entitlement were the ones who were most likely to “want” the good things in life – including boosts to their self-esteem – even more than they actually “like” them.

“Entitled people want all the good things in life, even if they don’t particularly like them,” Bushman said. “Of course, there’s no problem with enjoying good things, but it is not healthy to want them more than you like them.”

More than unhealthy, it produces miserable, disaffected, unmotivated, whining lawyers.  Having gotten the trophy for being the “final winner” (as opposed to what they really were, the last place loser) confused them such that now, as they show up at an office with their shiny shoes, shiny cheeks, shiny iPhone, they can’t fathom why their name isn’t on the firm letterhead and they aren’t seated in the corner office.  More to the point, the same writing that earned them an A- in law school, the very bottom of the curve, isn’t receiving the oohs and aahs it did from their kvelling parents and lawprofs. 

Always be constructive in your criticism, and always, but always, lead off with a positive before saying anything that could be construed as even slightly critical.  That’s pedagogy today.  Parenting is far more restrictive, since nothing is ever bad, wrong or sucks, and nobody ever loses.

“American society seems to believe that self-esteem is the cure all for every social ill, from bad grades to teen pregnancies to violence,” he said. “But there has been no evidence that boosting self-esteem actually helps with these problems. We may be too focused on increasing self-esteem.”

Study co-author Crocker added, “The problem isn’t with having high self-esteem; it’s how much people are driven to boost their self-esteem. When people highly value self-esteem, they may avoid doing things such as acknowledging a wrong they did.

In other words, the same drive for self-esteem precludes them from recognizing when they don’t deserve a balloon.  To the Slackoisie, they always deserve a balloon.  Their work is always wonderful, no matter whether they phone it in (but I do my best work in my pajamas at two in the morning) or the out of touch curmudgeon partner tells them they really can’t use hashtags in appellate briefs.

And now, the requisite caveat:  Fortunately, not all parents failed miserably in raising their little darlings. Some told them they have to work for the things they want.  Some explained that life isn’t always fair, and doesn’t always give them the best of everything.  Some even informed Muffy and Buffy that they lost the race and the cute little trophy meant nothing. 

Not all Millennials are Slackoisie.  More importantly, even if you are, you have the ability to change any time you want.  You can even do it this very moment, realizing that the planets don’t revolve around you and that the reason you’re sitting on the couch in your parents basement eating Cheetos and playing Mortal Kombat isn’t because the world has yet to recognize that you really are Baby Einstein.  You can get to work anytime you want.  Try self-respect in place of self-esteem, and you can still have that future you were promised.

Or you can sit there craving the next unearned compliment. Your choice.

H/T Stephanie West Allen

Every year around this time, I write about my stint at Cardozo Law School’s Intensive Trial Advocacy Program, which I’ve come to believe to be one of the most useful instructional tools around.  Tout the elite schools all you want, but should you end up actually doing lawyer-type stuff, like trying cases, tossing around your Harvard pedigree isn’t likely to get you an acquittal. 

Knowing how to try a case, on the other hand, just might make you a real lawyer.

This year, Peter Walsh, the administrative director of the program developed by hardcore lawprofs Barry Scheck and Ellen Yaroshefsky, entered the digital age by posting a video about the program, which I’m thrilled to share.



Law students, if your school doesn’t offer a program that might actually provide you with a foundation for the skills you will need to become a lawyer, ask why not.  A law school that is happy to cash your student loan checks while failing to provide you with the tools of the profession is failing you.  Stop whining about it on JD Underground and demand a program like this at your school.

Stephen Yagman.

Tim Lucas.

Mickey Sherman.

Three to a cell?  They could talk amongst themselves about their problems, their needs, the pressure they were under.  They could embrace each other and commiserate.  They could agree how unfair it all is, how wrong it is, how onerous the consequences.  All have been sentence to a term of imprisonment for failing to pay their taxes.

Is there something about lawyers that lends a sense of invulnerability to decisions that would otherwise be so utterly clear as to be beyond dispute?  Our clients expect us to advise them wisely, yet lawyers behave in a manner guaranteed to bring the wrath of the government down on their head?

I can’t help but see this, to some extent, as a sign of the times, the hubris of believing that we are so powerful and important that we can ignore the obvious and somehow avoid the consequences of conduct that everyone knows will follow.  Combined with the rather sick need to pretend to the world that we are fabulously successful and wealthy, and thus must have all the toys that successful and wealthy people have.  The Mercedes.  The Big House (no, not that big house, which comes later).  The iPad with unlimited access. 

These things cost money, and money has to come from somewhere.  The need to show off the world is far more pressing than the need to pay estimated taxes or send a check on April 15th.  Nobody is impressed with you for paying your taxes on time.  It’s not like you can put a sign on the side of the BMW that says, “and I paid my taxes too.”

Worse still, if you’re hellbent on screaming loud and often, “look at me, look how important I am,” then don’t be surprised if someone does.  Mickey Sherman had Larry King on speed dial.  How could he spend his evenings on the tube and not live the life of a celebrity?  It wouldn’t be right.

Yagman was a “crusader against police brutality.” and you tend to make enemies when you do stuff like that.  These are enemies looking for a way to pay you back for calling them bad names.  Nothing would please them more than to be able to call him bad names too, so why hand them a reason on a silver platter?

Lucas “lived an extravagant lifestyle during the years that he failed to pay his taxes, including spending $100,000 on trips to the French Caribbean territory of St. Barthelemy and $65,000 on trips to New York City.”  He argued at sentence that his excessive spending was the product of mild bi-polar disorder, and indeed it may well have been. 

“I have lost everything tangible and intangible,” he said. “My reputation, my law license, my ability to earn a living and my ability to provide for my family,” he said.

“I have lost everything I worked to gain in 37 years.”