Dan Hull introduced me to Pat Lamb in Chicago a little over a year ago.  Pat’s a big, gregarious, funny guy.  He’s no dud, but the kind of guy you immediately want to have a beer with.  Then again, nobody is a dud when Dan Hull is around, sharing stories of his days as a confidant of Jimmy Page and the inspiration for Stairway to Heaven, before the tragic kiln explosion.

Pat’s become something of a preacher to civil litigators (you know litigators, the people who hope to become trial lawyers when they grow up) on the death of the billable hour.  Pat has now written a book about it, Fee Arrangements: Value Fees and the Changing Legal Market.

The idea of civil litigators using what are bizarrely called “alternative fees” is novel and shocking in a world where tenths of an hour are life and death.  Having sat through a few of Pat’s sermons at the Church of Value Billing, I’ve seen the heads of lawyers shake and shimmy as the soothing words flowed.

No, no, it can never be.

My God, it will change everything.

How will we ever survive?

He’s talking about civil lawyers doing what criminal lawyers have done forever. Granted, he talks as if he’s invented the concept, but then, the idea of losing hourly billing is so fundamentally radical amongst the civil crowd that he might as well have.  You can bet your bottom dollar that they wouldn’t pay the slightest attention to what lawyers in any other niche have been doing forever.  We’re the Saxons to their Anglos.  Maybe even the Visigoths.

What’s this all about?  It’s about charging by the case.  It’s about our dearest friend, fixed fees.  Of course, Pat also talks about value billing, where the lawyers earn more, or less, because they have met the particular needs and criteria of their client.  While we’re not allowed to play that game, it’s still a concept that we’ve used forever, caring about our clients’ concerns and doing whatever we must to meet them.

The traditional method of hourly billing encourages lawyers to spend time.  That’s what they are paid for, time.  Take forever to bring a case to resolution?  Time. Research and write in depth memos on every issue that could conceivably arise?  Time.  As long as one can arguably justify why it’s worth wasting, time is spent. More time?  More money.  Longer case? More money.  Unlike our clients, their well doesn’t run dry as long as they send in bills that satisfy the rigorous demands of grocery clerks.

Think of Pat Lamb as the missing link (having nothing whatsoever to do with physical appearance.  I swear.)  between civil litigators and real criminal defense lawyers.  Eventually, they will figure out that we’ve known what we were doing all along, and that their disdain for our rough and tumble world, guided solely by what worked rather than what our forefathers did, is misplaced, With Pat Lamb’s guidance, they’ll eventually figure it out.

And if you ever get the chance to hang out with Pat, or Dan Hull for that matter, don’t pass it up.  Just don’t let Dan show you his “scar”. 

Had the trial been for smoking dope, it wouldn’t have made more than a ripple.  Had it been for sticky fingers in the church till, a few might have “tsked”.  But the allegation was that a teacher sexually molested a 12 year old girl.  This sort of allegation is one that doesn’t wash away.

Sean Lanigan was a popular teacher and coach, but apparently not every student thought he was the ginchiest.  One girl hated him for his threat to punish her for bullying other students.  And she had no qualms about pulling the molestation card.  From the Washington Post :

The case against him hinged on the testimony of two sixth-grade girls at Centre Ridge Elementary School in Centreville, who said Lanigan had scooped up one of the girls in the middle of the school gym, carried her into an equipment room, laid her down on a mat and massaged her shoulders, groping her in the process.

The main accuser, who acknowledged having a grudge against Lanigan for threatening to discipline her for her bullying behavior on the school bus patrol, alleged that Lanigan briefly touched her breast and buttock during the incident.

Lanigan vehemently denied any touching.

Lanigan testified Wednesday that he did no such thing. The married father of three said he treated students the way he treated his children, picking them up, twirling them around, laughing and joking. He taught at Centre Ridge [Elementary School] for 12 years and coached youth soccer throughout Northern Virginia for 20 years.

He was tried.  He was acquitted.  The jury took all of ten minutes to decide.

Jurors said the prosecution had no case, and after reading their legal instructions, it took the seven women and five men about 10 minutes to come to their unanimous decision.

“It was an easy decision,” said juror Asmaa al-Ghafari. “I just hope Mr. Lanigan can get his life back.”

“There was no evidence,” juror Jacklyn West said. “There was no case.”

As people like to say when the “right” result happens, you can beat the rap but you can’t beat the ride.  It’s one of those cute phrases that doesn’t come close to expressing the pain, humiliation, anguish and fear that false allegations bring.  Lanigan didn’t beat the ride.

Lanigan, who was thrilled by the verdict, said his arrest, suspension without pay and subsequent publicity had destroyed his life. When his attorney, Peter D. Greenspun, discussed the devastation to Lanigan in his closing argument, West broke down in tears and the trial was briefly recessed.

West and other jurors said the 12-year-old accuser “had no idea of the consequences” of accusing Lanigan of molesting her. “This poor man. That’s why I cried.”

It’s no surprise that the accuser had no clue of the harm she would cause.  Adults who make false accusations never quite understand or appreciate what they are doing, the damage they are causing.  Often, they wish they never started down the road of false accusations, but by then it’s too late.  Others convince themselves that the victim of the victim deserved it, and begin to believe their own lies through some mental mechanism that protects them from realizing just how harmful their lies can be. 

But a 12 year old?  Who knows what thoughts flow through the mind of a young girl.  That’s why society puts a group of detached adults between the child-accuser and the accused.  The Salem Witch Trials should have taught us something, right?

One might suspect that the prosecutors who reviewed the allegations against a teacher and coach might consider whether their discretion, and they always have a certain amount of discretion, would be best exercised by questioning whether this was the product of a sick and dangerous teacher or an angry and malicious child.  They had the evidence before them, as the jury would later. 

After having the opportunity to carefully consider the evidence, and with the presumed capacity to appreciate the damage they would cause to a human being, the prosecutors made a decision: Go after Sean Lanigan.  Convict him.  And if not, destroy him anyway.

It only took the jury 10 minutes to tell the prosecution what it thought of the case.  Eight of those minutes were burned getting comfortable in the chairs, and another was used up shuffling papers. 

So now, Sean Lanigan is broke and broken.  His family, his reputation, his life, are devastated.  To what does he owe the ruination of a life 43 years in the making?  The judgment and discretion of a 12 year old and some prosecutors whose case was such a mutt that it couldn’t keep a jury out for more than 10 minutes.  The jury sent them a message, but they won’t listen.

Long after our disgust and head-shaking is over, and we’ve moved along to a new story of absurdity or abuse in the hands of those in whom we repose trust and power, Sean Lanigan will still be looking at the ruins of his life.  Fortunately, he is also blessed with supporters, those who would not buy into the accusation being all that was needed to burn him at the stake.  Whether this will be enough to rebuild a life has yet to be seen.  Why he should be compelled to rebuild a life has yet to be answered.

And the people who made the decision to pointlessly destroy a man and his family will move on as well, bright futures ahead of them.  They never got the message.

It’s a beautiful Sunday morning as I tap the keyboard, thinking of seven posts that might be written at this moment.  Instead, I’ve decided to do something a bit different. My thinking is that it’s Sunday, a day when fewer readers stop by than any other day of the week, and it’s unlikely that I’ll get too many complaints.

As of yesterday, Simple Justice was number 4 on the list of Avvo top legal blogs .  Today, it dropped from 4th to 6th, out of the top five and off the big list.  I’ve no idea why, nor does it matter.  Simple Justice will be as significant, or insignificant, as my posts.  But the interesting thing about it is that each of the top five is made up of blawgs written by groups rather than an individual, except for Ann Althouse.  She’s obviously more interesting than I am, which is why she remains at number 3.  I kinda like being on the big list, and feel badly that I’ve fallen into the abyss, as if the list just told me that I used to be okay, but now I suck.  But I can’t argue with a list.

Simple Justice is something I do to amuse myself, an opportunity for one guy to write whatever strikes him as being worth writing at any given moment.  There are no rules about what I write.  It’s mostly commentary about legal news and decisions, but can stray far afield without notice.  I regularly hear from readers about how they prefer some types of posts more than others, urging me to limit my writing to posts that interest them.  Even more regularly, I’m told how a reader hates a post and demands that I lay off the subject upon pain of . . . something.

I don’t care.  This is my soapbox, for better or worse.  If you want to read what I write, great.  I appreciate it.  If not, well, that’s the way the cookie crumbles.

More significantly, at least to me, are the complaints that I write too much, or that I must spend every waking moment writing to churn out the amount of content that appears here every most mornings.  I’ve explained numerous times that it just doesn’t take me very long to do this.  I average about ten minutes a post, often interrupted with important things like refilling my coffee mug, talking to my kids or listening to Dr. SJ’s instructions on what I shouldn’t screw up that day. I get back to writing when I can.  Writing Simple Justice never interferes with life or practice. 

People don’t believe me.  As my buddy Mark Bennett says (and I hope I get his quote correct the first time, this time), I can explain it to you but I can’t understand it for you.  Despite my having explained the mechanics of doing this blawg, I’m often met with disbelief, and occasionally called a liar.  Some have even questioned whether there are elves in some backroom somewhere churning out content to be posted under my name.

Sorry.  No elves.  Not even a backroom.  It’s just me.  One guy and a keyboard. 

How is it possible?  I take a few shortcuts for the purpose of doing a blawg.  While I spellcheck after finishing a post, I don’t proofread, which is why my posts often contain stupid errors that should be easily cleaned up.  Many blawgers contend that it’s idiotic to not proofread their posts, as it gives the impression of carelessness in one’s work, which a potential client might extrapolate to indicate similar carelessness in writings for court. 

They’ve got a point, though it’s not the case for me.  My motions and briefs are an entirely different matter than this blawg, and they are proofed thoroughly.  This blawg isn’t a motion or brief, and more importantly, no one’s life hangs in the balance.  That said, I now have my editor, Marilou proofing my posts, and she’s been an angel.  I’m much happier knowing that stupid mistakes no longer abound. 

People demand (yes, demand) to know how it’s possible that I can do this.  They suggest that I must spend all day doing it, that I must have no law practice, that I steal my content from others, that it’s just not possible.  Look.  I’m sorry if it bothers you so much that you feel compelled to rationalize why I can do this and you can’t.  Bothering you isn’t my purpose.  But what am I to do?  Should I not write because you can’t keep up?  Heck, people complain to me that I put too many posts up a day, more than they have time to read.  So don’t read.

Even the brothers and sisters in the blawgosphere complain, that I get to stories before them and don’t leave anything for them to write about.  This is total nonsense. I leave posts on the table every day, for lack of time or just because I don’t want to get another smack for being too prolific.  I despise the word “prolific”, as it smacks of an all-you-can-eat buffet.  The food sucks, but there’s plenty of it.  Don’t blame me if you can’t think of anything to write about.  In fact, don’t blame me for anything.  I have nothing to do with your choices.  You’re on your own.

As Norm says, there’s certainly a large dose of ego gratification in blawging,  One feels good about others reading their words, especially when there is no reason for them to read at all.  Of course, the flip side is also true, as the internet consists of an angry mob waiting to pounce.  Write the wrong thing and they will descend like locusts, ripping your eyes out of their sockets without a thought.  Readers tell me that I’m an idiot.  Some want their time back, wasted on reading my posts.  I offer a full refund.  And some readers think they can hurt me by telling me that they won’t be back.  My take is they’re borderline (at best) psychotic narcissists.  Even if they aren’t, that’s how I choose to perceive them.

Having a blawg is partially about writing, but largely about herding feral nutjobs.  The first thing every nutjob buys is a computer with internet access, so that they can roam freely and make sure that no one on the internet is saying anything they disagree with.  When I started Simple Justice, I was unaware of this.  It’s since become the most time-consuming part of maintaining this blawg.  You, on the outside, have no clue what I put up with.  None.

I’m often critical of other bloggers, who want to be recognized as a law blogger but instead engage almost exclusively in navel gazing.  And here I’m writing only about myself.  Since the vast majority of my posts here are substantive, I’ve given myself permission to indulge.  And it’s Sunday, so I don’t anticipate inconveniencing anyone who has stopped by for something worthwhile to find only this drivel.

You may have noticed that I included my name in the title of this post.  It’s the first time I’ve ever done that.  The reason is that my name appears in plenty of posts, usually the ones critical of me or at least being overtly snarky.  I know, the snarky ones are meant as an homage, but sometimes they take my jokes too seriously and strike me as being unable to distinguish between the person and the persona.  It annoys me at times.

A couple of weeks ago, an email came in about how the writer had googled my name and found some insane, vile posts about me on the second page.  My psycho stalker is still working hard through the night trying to get his inane nonsense on the first page of google.  You haven’t made it as a blawger until you have a psycho stalker.  Psychos, by definition, don’t go away.  I assume that people who aren’t totally nuts realize that these attacks are the work of a psycho.  I could be wrong, but I have no plans on spending my time worrying about it.

By putting my name in the title of this post, it’s likely to appear on the first page of google.  It will push the insane posts down the list by one.  It would be really great if everyone did a nice post about me and used my name in the title, so that the insane posts could be pushed back to page 28.  I don’t expect anyone will think it worth their effort to do so, unfortunately.  Simple Justice may matter enough to read, but there’s little concern out there for the writer.  I’m more the hired (yet unpaid) help, as far as others are concerned.

Simple Justice is as meaningful, or meaningless, as you find it.  It’s just the thoughts of one person, cranked out while drinking my morning coffee.  Believe it or not.  Care or not.  There are posts that mean more to me than others, and sometimes I’m bothered by the posts that attract little attention because I believe they are pretty good, or sometimes pretty worthwhile.  You don’t?  Yeah, that bothers me.  I’m not above caring that others share my view of what matters.  At the same time, I can’t make you care.

If you’ve reached this point in the post, I thank you.  My bet is that few will.  My navel gazing likely won’t interest too many folks out there.  There’s little to commend the fabulous life of a blawger.  No great wealth.  Certainly no appreciation.  Complaints? You bet.  Attacks?  Daily.  Freeriding? Constantly.  Yet I continue to wake up every morning with a bunch of stuff I want to write about, sit down at the computer and just start to tap on the keys.

You never know what’s going to come out.  I never do.  Thanks for reading.

Scott Rothstein may be the worst scoundrel to ever hold a license to practice law, but 

Looking back, however, lurking just below the surface was a person so fearful of failure and so terrified of ever having to struggle the way his parents did, that it translated into an acute anxiety disorder that was, at times, debilitating, and for which I continue to seek treatment today. Moreover, I now realize that it translated into an underlying set of character defects and personality flaws that would ultimately never allow me to accept any type of failure on my part. These traits would lay dormant for many years, held in check by the countervailing principles that were the foundation of my family upbringing, until my ego allowed them to manifest themselves in the form of an individual so narcissistic that I would do anything to avoid any type of chink in my armor; anything that would make me look less than uber-successful and perfect in every detail.

The fear of being recognized as unworthy is a powerful and dangerous motivator.  It’s what drives lawyers to deny the possibility that they might have been wrong when they blow a critical call in a case.  It’s what drives people to buy that BMW they can’t afford.  It’s what makes strong men cry in the privacy of their room. 

Rothstein offers, at numerous points in his letter, that his conduct was inexcusable and he deserves no concession from the court or those he’s harmed.  Yet, he states:

I understand that this Court must, and I expect it to, sentence me to a significant term of years. I only ask that you deal with me fairly and that based upon the fact that the record now exists, from my decision to return from Morocco and all that I have done since, that I am truly a changed man and that I have sincerely tried to redeem myself, that you consider giving me an opportunity to live at least part of the remainder of my life as a free man with an opportunity to do some good in this world. I will never forgive myself for what I have done nor do I expect anyone else to forgive me. But I will spend the rest of my life doing everything in my power to make right all the harm I have caused and to restore my family’s good name as best as G-d will allow.

 A changed man?  Sure, as is every man in prison.  It’s amazing how the epiphany comes after the fall.  Redeemed himself?  Not yet.  Not even close.  Redemption doesn’t necessarily happen to coincide with self-interest.

But it’s his last four words that are most striking:  as G-d will allow.  Notice (as is obvious) that he replaces the “o” with a dash, to show the depth of his religious beliefs.  This isn’t the only mention of God in his letter, where he earlier notes that he sought guidance from God to help him out of the mess he created.  It’s an odd view of religion where God can be invoked to coverup crime.

It’s said that religion is the last refuge of the scoundrel. 

Few lawyers, like Scott Rothstein, burn with the desire to be the biggest, best, most admired, most envied lawyer around, so much so that they would engage in a wild Ponzi scheme to accomplish it.  But how many of us have just a little bit of the Rothstein in us, enough to buy that fancy car to show how successful we are, or lie to a client and conceal an error because we can’t admit we’re human.  And as for being the wealthiest, most successful guy around, forget it.  There is always someone wealthier, more successful.  It was never worth the effort.

It would have been bad enough had he died only because of a complaint for panhandling by a liquor store in Waukegan.  It would have been bad enough had he been the right guy rather than someone who had nothing whatsoever to do with it.  But for Jose Martinez, he wasn’t the guy who panhandled.  Yet he’s dead anyway.  From the Lake County News-Sun :

Details remain sketchy on the circumstances surrounding the death of a Waukegan man who was tasered by police on Saturday.

Jose Martinez, 53, of the 800 block of Grand Avenue, was shocked into submission by a Waukegan police officer about 8 p.m. outside of Dave’s Liquors, 2300 Grand Ave., and reportedly suffered cardiac arrest. Lake County Coroner Dr. Richard Keller said Martinez was taken to Vista Medical Center East in Waukegan, where he was pronounced dead.

The only other bit of information offered:

Armando Martinez, 58, of Waukegan, [a] brother of the victim and a former Waukegan police officer, said the woman who was clerking Saturday night told the family that it was a different man who was causing problems at the store. He said he heard that police chased Martinez in the parking lot, stopped him with a Taser, then couldn’t revive him.

It’s not a crime to have a heart condition.  The police, naturally, say they are investigating.  According to Waukegan Police Chief Artis Yancey, he doesn’t want to elaborate on what happened because “I don’t want to cloud the investigation.”  Or they haven’t come up with a decent story yet.  They might be more inclined to “cloud” the investigation if there was some way to smear Martinez, say with a prior arrest or conviction. 

Had Martinez been a panhandler, which apparently he was not, his death would still be inexcusable.  Sure, panhandling is unlawful and, especially to business owners whose customers are hassled, annoying.  Does that demand the death penalty?  But Martinez reflects the worse case scenario, a man who has done nothing, not even the trivial offense that gave rise to the police presence. 

Did he fail to halt upon command of the officers?  Did he try to flee?  The above quote says police “chased” him, but that doesn’t inform whether Martinez did anything or the police saw him from a distance and ran toward him.  They could well have been out of breath (donuts will do that) and a bit miffed at the forced physical exertion.  They weren’t in a mood to chat, so tased instead.  Isn’t that their right?  After all, make a cop work and one should expect pain.  It’s one of the perks of the job.

It’s now beyond contention that a taser, though less lethal than a gun (although a gun is less lethal given the inability to hit the broad side of a barn), is, at its best, very painful and, at its worst, deadly.  So it was the combo of taser plus heart condition?  People are allowed to have heart conditions. That’s not something to hold against Martinez. 

Tasing is the use of force.  As with any use of force, its justification comes from protection against the use of force, whether directed at cops or others.  It may have become the weapon of choice of Waukegan’s Laziest, but that doesn’t offer much comfort to Martinez’s family.   Force is not a convenience for police, a quick and easy way to bring an encounter to an end or payback a noncompliant suspect.  But then, had it been merely a jolt of searing pain without death, nobody would have given this a second look.  Inflicting pain isn’t enough to make anybody take notice these days.  Heck, a death is barely sufficient to make anybody blink.  The cops in Waukegan can no more be trusted with tasers than cops anywhere else.

The story tells us almost nothing about the death of Jose Martinez.  And yet it tells everything we need to know.

Commenter Lee Stonum wrote:

 I am confident that Scott, Bennett, Pattis and Gamso are all hard-working, dedicated smart lawyers. I’m just as confident that Bennet & Pattis are superb trial lawyers (Scott & Jeff don’t talk as much about actual trial practice, but I’d guess they are also very good).

That was kind of him to say, but he’s wrong.  I write a blue streak, but that doesn’t make me a hard-working, dedicated smart lawyer.  Nor does the fact that I don’t write as much (anymore, anyway) about actual trial practice show that I’m “very good.”  Lee’s fallen into the trap of the blawgosphere.  Maybe I’m not a lawyer at all.  Maybe I’ve never tried a case in my life.  Maybe I’m twelve years old and pretending to be a lawyer when I should be studying for a spelling bee.

Okay, it’s fairly easy for me, since I’m completely transparent and verifiable.  Though Lee’s assumption, that my lack of discussion about my trials is indicative of my not trying as many cases as, say, Norm Pattis, is mistaken. In fact, I don’t, as my practice is very different than Norm’s, and I would never carry the volume of cases that Norm does, or go from trial to trial to trial.  That was my practice years ago, but it’s no longer the way I work. 

But my lack of discussion has nothing to do with that, and everything to do with my decision to not discuss my cases to avoid any possibility that a confidence or strategy will be disclosed.  I don’t own my cases, and they aren’t mine to write about.  They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet.  I respect that, so I don’t kiss and tell.

Others feel differently, and I accept that my position is not universally shared.  As a result, I learn a lot about how things are going for other lawyers.  In particular, about Norm.  He’s been bleeding all over the place lately, and sums it up in a post today.

It has not been a good year for me. I had a run of guilty verdicts unlike any I have ever had before. I lay in bed at night wondering whether I’m washed up, or whether I’ve become too arrogant to be trusted by jurors. In each case I tried this past year, I was able to accomplish what I wanted to do with the evidence. But the evidence, well, it kept on coming against client after client, a tsunami of grief that buried my clients and my ego.

After a loss, I sometimes sit late at night and wonder whether a better lawyer would have obtained a different result. This form of torture goes on sometimes for weeks, until a new case or controversy laps over the shore of discontent.

I don’t know any good trial lawyer who doesn’t believe he’s Superman going into the case, and a worthless wretch after a loss.  If you don’t feel this way, you shouldn’t try cases.  You can’t, no matter how many tricks you’ve been taught or gods you’ve prayed to.  But you get only one day to feel sorry for yourself.  After that, the pity party is over.  There’s work to be done.

That Norm has had a bad series of verdicts is unfortunate.  As a friend, I feel for him.  But as a friend, I say “snap out of it.”  We’re useless when we lose our confidence in our ability to try a case.  If you are washed up, you better figure that out for real rather than take another case and risk another life.  But you know you aren’t washed up, and that you’re just oozing self-pity.  You know that we stare down both barrels of the biggest shotgun known to man every time we step into the well.  If you can’t face it anymore, then it’s time to sit at a desk.  You aren’t ready to sit at a desk for the rest of your life yet, are you?

It’s more of a worry to me when a lawyer doesn’t feel the pain of a loss.  Either he doesn’t care, and takes another person’s life for granted, or he’s not yet ready to be entrusted with such a responsibility.  Not everybody is cut out for this sort of work.  In fact, very few are really meant to carry this heavy a load.  There are people in the courtroom who are just awful trial lawyers.  When they sit at the table next to me, I’m more afraid of them than I am of the prosecution.  The knife in the back is harder to see coming.

I’ve never tried a case where I didn’t think there was something I could have done differently, better.  Even when I win, I wonder.  Only for a day.  Then I put it behind me.  I mean really behind me.  To continue to carry that albatross around would make it impossible for me to walk into the courtroom believing that I can, I will, win the next trial.  And I will win the next trial.

Snap out of it, Norm. You will win the next trial.  And if you need to write about it to exorcise the demons, that’s fine, but then let it go.

Parsing language is one of the things lawyers do, or at least are expected to do.  The truth is, we often don’t do it, or at least not any better than non-lawyers.  And non-lawyers do a fairly lousy job of it.

Yesterday, I wrote of Mirriam’s query about the meaning of “thought leader.”  It’s a silly, meaningless phrase, but at least Mirriam asked.  We’re inundated with strings of meaningless words in the blawgosphere, mostly by muddy thinkers who adopt jargon that sounds almost as if it means something so that even muddier thinkers will wrap it around themselves.  This is the way of marketing.

But there are more serious issues arising from loose language, which struck me as I read Scott Henson’s Grits post, entitled New York implements statewide eyewitness ID guidelines.  The story upon which the post was based certainly gives the impression that New York has, indeed, implemented new guidelines.  The problem is that New York, meaning the entity that holds the keys to prison cells and sends out tax bills, did no such thing. 

The story refers to the District Attorneys Association having come up with a tepid “best practices” for the conduct of eyewitness identifications, that suggests some reforms and is intended to forestall serious reform that might be put into law by the real New York (as in State government).  In other words, it’s a nice idea, but if it doesn’t happen that way, so what?  This isn’t law.  New York did not implement anything.  It’s a trick for the less-than-careful. 

George Orwell warned us about the use of language to muddy our thinking and blunt our ability to differentiate thoughts.  He feared that government, by the elimination of language that could be used to expose its failings and dishonesty, would leave us incapable of challenging it.  I fear that we’re doing the government’s job for it.  It takes a lot of work to read through stories, press releases, whatever, to distinguish the truth from the misleading fluff, designed to prey on muddiness.  It anticipates our unwillingness to do the hard work involved in thinking.  We too often accommodate.  As my daughter once informed me, she hated thinking.  It hurt.

It’s not just the hard work of thinking, but the unpleasant work of being disagreeable that prevents our scrutinizing and challenging the mud.  Gideon called me cynical when I questioned news of “New York’s implementation,” but I wasn’t cynical at all.  Rather skeptical.  Over the years, I’ve learned to question things, and I do.  I admit it, I’m a skeptic.

Be a skeptic too.  Question what you read, what you’re told, what you see.  Granted, sometimes muddy language is nothing more than an inartful expression.  Often, however, it reflects an effort to mislead and deceive, to suggest something that its purveyor wants you to think that isn’t true, but isn’t sufficiently false that they can later be called a liar.  It’s a test to see how gullible, how willingly ignorant, you can be.

Yes, it’s unpleasant being the one who questions others.  It’s particularly unpleasant when the mass of recipients of this information happily take a mud bath, seemingly cheering it on as if it’s epiphany.  Lately, I see people retwitting posts that contain nothing more than unrelated words and phrases strung together as if it conveys some incredible message when it’s nothing more than gobbledygook, and adding in their kudos for such a “great post.” 

Sometimes this is done just to curry favor with the writer, as many care nothing for content and everything for having people they don’t know think well of them.  They are willing to sacrifice any semblance of integrity for a new follower.  Better to be nice than, well, anything else.  How many are trying to gain popularity to compensate for childhood slights?

Is this really all you care to be?  Another warm body on the hand-holding bandwagon of fuzzy thought and meaningless words?

Don’t be afraid of appearing disagreeable because you won’t be the most loved and adored person on the internet.  It’s okay to be a skeptic, even if it means that you can’t agree with what everybody else is saying.  You may not always be right, but at least you won’t be a willing fool.

Read carefully.  Think carefully.  Question as much as you can.  We’ll all be better for it.

The story of the Mafia cops, Louis Eppolito and Stephen Caracappa, are the stuff of movies.  And New York.  The mob is as intertwined in the history of New York City as the Brooklyn Dodgers, except they didn’t move out on their own.  And a part of every story is the cop on the take.

Barry Gibbs is 62 years old.  He walked out of prison in 2005 after doing 19 years because Eppolito framed him for murder.  Eppolito needed somebody to nail to close the file, and Gibbs was the man.  He settled with the State for $1.9 million, and now settled with the City for $9.9 million. 

“The settlement I’m happy with; it was my bottom-line settlement,” Mr. Gibbs said in an interview, sounding almost indifferent to the news. “They are permanent scars,” he added. “It’s been a long road. I’ve been through a lot, and it was very traumatic for me.”

This is the largest settlement ever with the City of New York.  For now.  It’s a lot of money, particularly for a former postal worker who struggled with drug addiction and didn’t have great expectations for his future.  He was the perfect choice for Eppolito to frame, a throw-away in the scheme of humanity.  No one would ever care if Gibbs lived or died.

Barry Gibbs cared.  Barry Scheck cared.  First, his innocence project obtained Gibbs’ freedom.  Then, in his private lawyer capacity, he obtained compensation.  Yes, he took his third, but nobody hands Scheck those sweet suits he wears for free, you know.  He’s allowed.  In fact, few are more entitled than Barry Scheck.

But Barry Gibbs isn’t likely to need any bespoke clothing, even though he can afford to buy anything he wants.  He’s just trying to adjust, and it hasn’t been easy.

“I’m surviving in this world out here,” he said. “It’s not easy readjusting to this life. Computers, phones, cars, everything — it was overwhelming to me when I first got out. Now I just flow with it.”

Does money help to readjust?  It can’t hurt, I assume, but I bet Gibbs would have paid for this opportunity:

Mr. Gibbs even attended a sentencing hearing for Mr. Eppolito and Mr. Caracappa, who are serving life plus 100 years in prison, during which he was escorted out for yelling: “Do you remember me? I’m the guy you put away for 19 years!”

It disrupted Eppolito’s sentencing, but only for a few seconds.  Hardly too much to tolerate in comparison to 19 years of life lost.

It’s never clear to me whether money compensates for the years of life lost to prison, or even how much money is the right amount.  It doesn’t square things up, but it’s the best the system can offer.  The system’s best isn’t very good.  But money serves another purpose, as its the currency of politics.  To some small extent, it puts a price on government’s blind faith in bad cops.  It’s that much less they have to hand out to cronies for honest graft.

The New York City Police Department had reason to believe that Eppolito and Caracappa were dirty long before they retired and took their pension.  As is the police way, they were cleared for service.  Eppolito retired to Vegas, where Gibbs original police file was found amongst his papers.  He obviously remembered Gibbs enough to glom the file.

When Eppolito was sentenced to 100 years in prison, he was 60 years old.  When Gibbs was sentenced to prison, he was only 38. The years from 38 to 60 are big ones, not that any year of life is inconsequential.  I wouldn’t trade those 22 years of life for $10+ million.  But then Eppolito wouldn’t have chosen me to frame.

A recurring theme is that the targets of police abuse, misconduct, framing, are societal throw-aways.  The sort of people that good, law-abiding people care nothing about, and are inclined to believe are guilty of something and, well, just generally worthless.  Prosecutors and judges care little for the flotsam of society, and feel no particular concern that they get tossed carelessly on the junkheap of the criminal justice system.  These are the people who are smeared in the first police press announcement with their prior criminal record, irrelevant except to show their propensity toward crime and their worthlessness to society.  “Who cares” is the message.

Had Eppolito framed a respected member of the community, it’s likely that it would have been subjected to far greater scrutiny by all the government players.  It’s likely that the respected member of the community would have had the resources to mount a fight.  Eppolito didn’t want a fight, so he threw Gibbs away.  Had it been a respected member of the community, it would have cost a whole lot more than $10 million dollars to settle this claim.

The price of Barry Gibbs’ innocence was cheap to everyone but Barry Gibbs.  When it’s your life thrown on the junkheap of society, the price cannot be measured.  Contrary to what judges, prosecutors and dirty cops may think, Barry Gibbs’ life is every bit as worthy as that of the people they perceive as a respected member of society. 

H/T Ed at Blawg Review via Injustice Everywhere

You remember the Golden Rule, as your mother taught you on her knee:  He who has the gold, rules.  What?  Do unto others?  No, that’s the golden rule for losers.  Just ask David Friedman’s law student.

My student evaluations for an upper-level class arrived last week in my mailbox.  The evals were benign and unremarkable with two exceptions.  One student wrote, “Nothing to improve, except for clothing.” That’s feedback I can act on.  I can change the outside easily. Men’s Wearhouse, here I come.

One student refused to dignify the front page of the evaluation with any markings, except for the word “OVER ->” On the back, the student wrote “WE PAY YOU. YOU DON’T PAY US.”

The birth of the law student tea party?  Consumerism taken to the extreme?  Or perhaps its the Slackoisie view of the world, that education, like the purchase of a third generation iPad, is cash and carry.  And this law student will soon become a lawyer.

If you pay to attend my school and allocate your time toward my class, you have to follow my [very reasonable] rules to earn credit.

If you are reading this and thinking, “Well, that’s obvious.” It’s not obvious to all students. Why is that? We can play the old “it’s generational” song on our violins because we know the tune well, but I think students today consume all services differently.

I suspect he’s right, that there is a very different attitude of students as consumers.  But then, we called our professors “Professor” when I went to law school.  We knew they had first names, but had no use for the knowledge.  If we had a question, we stood outside their door at office hours.  We did not know their email address.  There was no such thing as an email address at the time.  We politely inquired whether we could speak with them, lest they scream at us to go away from their door.  And we prayed our question wasn’t too stupid, or they screamed at us that we were too stupid to ever become a lawyer.

It’s can’t be chalked up so neatly, however, to consumer trends of youth.  Missing is the element of respect toward someone who has obtained a degree of knowledge to which they aspire.  Missing is that recognition that they are in law school by their grace and a low draft number.  Missing is the basic comprehension that tuition is not the same as buying songs off iTunes or Juicy flip-flops. 

Friedman is obviously bothered by this response, enough so that he wrote about it.  But not enough to come clean, apparently.  He still finds a way to trivialize the problem, despite being bugged by it.  He can’t bring himself to say that to a generation weaned on narcissism, they are always doing you a favor. 

The evaluation form is terrifying, as it reveals the internal workings of a mind that will soon be responsible for thinking of resolving the legal problems of others.  Will this mind contort its responsibility into an obligation the client has to the lawyer?  Will this mind rationalize its failure, neglect, incompetence elsewhere, as it did here to the professor?  This response doesn’t reflect the mind that should be allowed such an important responsibility. 

Doesn’t Friedman worry about this?  As a lawprof, does he have a responsibility to weed out those who should not be allowed to hold such awesome responsibility?  Certainly, he can’t think that this attitude represents the makings of a good and decent lawyer.  Yet he makes no mention of the need to identify this bad seed and yank him out before he infects others.  Or is it too late, since this is a reflection of students in general, and not merely one bad student.

If I were a lawprof, this would concern me greatly.  Not about the student, but about those who could be harmed by the student.  It’s hard enough to deal with an unethical lawyer, one whose moral compass and world view are so badly askew that they can’t be trusted with the lives of clients.  Shouldn’t the lawprof, and law school, be alarmed and identify this person before he harms people?

Oh, but that would mean that they wouldn’t get his tuition.  Well, he’ll be interviewed before admission.  If they have a problem with him, they can always deny him a ticket.  In the meantime, the law school can continue to cash his tuition checks with a clear conscience, knowing that there’s someone else down the road upon whom it can dump the responsibility.

The Golden Rule.  It’s alive and well.

I like Mirriam Seddiq.  She’s witty, spunky and manipulative, everything you could want from a woman lawyer.  She’s got moxie.  I respect moxie.  Mirriam was a blogger in the early days, long before Simple Justice was a twinkle in my eye.  I was unaware of her existence when I started, mostly because her posts were about her daily doings, and I was interested in the law rather than pets, meals and fee-ee-eelings.

After the child-birth hiatus, Mirriam came back, both to the practice of law and to the blogosphere. She’s busy trying to re-establish herself as a criminal defense lawyer, and to integrate herself back into the blogosphere.  Her old blog is new again.  Called Not Guilty (No Way) , Mirriam writes about her life.  She also has a lot of questions.

Today, I read (ish) an article on how lawyers are using social media.  As I’ve recently said, I’m at a crossroads with Not Guilty, trying to figure out what direction I want to go in and how I’m going to get there.  As a new solo attorney going it on my own for the first time, I’m wondering how to get clients to know I’m here and that I really have a firm grasp on this whole law thing. There are attorney who use social media to advance their business – my friend Jamison Koehler does not apologize for dropping SEO breadcrumbs throughout his blog.  Rock Star solo Carolyn Elefant, and Niki Black (who writes the book on Criminal Law in New York State) are fonts of knowledge on this front and have been exceptionally helpful as I try to make my way through this maze.  I believe that the internet has a power that I have not yet tapped, and I’m slowly coming around to that idea.

I can just see Carolyn cringe when she reads Mirriam’s description of her as a “rock star.”  It’s the sort of thing that hypesters and scammers call themselves to promote their self-importance.  Carolyn is substantive, and does everything possible to avoid the hype and scam.  Mirriam wouldn’t know that calling a substantive lawyer a “rock star” is demeaning.  She means well.

With that said, I admit to having no idea what that article I read (ish) means. Seriously.  None.  I have an understanding of the english words being used, but put all together – they mean nothing to me.  Thought leader?  I asked what this was and got non-answers.  While people may think the term is idiotic, I’d still like to know what it means in current usage. 

I was one of the people who gave Mirriam a snarky answer.  I thought her question was a joke.  She seemed sharp enough to grasp that there is a coterie of marketers online who use a perverted form of language to craft expressions like “thought leader” to suck in people who hope to someday become “rock stars.”  The real answer is that a “thought leader” is a person whose thoughts other people follow (seems rather obvious, no?), and the phrase is used to suggest that if you start a blog, preferably with the paid assistance of any number of marketers, you will become a leader and others will fawn over your every thought, eventually raising you to rock star status. 

I would have thought Mirriam would figure out what this silly phrase, “thought leader,” means.  It means nothing.  It’s a phrase invented by marketers to create a vague suggestion of self-importance in weak minds.  No one really defined it, nor was it meant to be defined.  It was meant to promote.  It was meant to create an impression, a sense, of meaning in the absence of meaning.  It was meant to appeal to people who would never be a “thought leader.” 

Perhaps Mirriam’s confusion is brought about by an ambivalence, an online schizophrenia, as is evident in her statement about Jamison, Carolyn and Niki.  As a new solo, she wants business.  The marketers, with the love and support of internet cheerleaders, offer what appears to be the road to wealth and success.  Of course, anyone with a modicum of reasoning skills wonders, “but if I go online, and everybody else goes online, then we’re all the same and right back where we started, right?”  Not exactly.

Some approach the internet as means of presenting substantive thought.  Others as a marketing machine.  Still others try to have it both ways.  The marketing lawyers use whatever tools are available to distinguish themselves, such as lies and deception.  They claim vast experience as lawyers even when they’ve only practiced a few weeks.  They claim vague assurances of victory, knowing full well they can offer no assurance.  They use former prosecutor status to suggest that they have some hook with the other side that can be purchased to beat the system. 

With each new marketing lawyer, the hole is deeper.  It has to be, as it serves no purpose to market yourself as inexperienced, incompetent and scared.  So every marketing lawyer is God’s gift to the law.  Ho hum.

The hybrids, lawyers who think they can play both sides of the field, generally fail at both.  They are banal in their thoughts and tepid in their self-promotion.  There’s little use for a lawyer who fits that description.

The substantive lawyer may win the approval of his peers, provided his substance doesn’t conclusively prove he’s got no worthwhile ideas at all (always a risk, much to the dismay of the lawyer who learns that he is, in actuality, a “thoughtless leader”).  But he still isn’t likely to achieve wealth and success on the internet.  Despite the thousands millions of words murdered by marketers and cheerleaders to tell us how to do it, such as the absurd article at Mashable that withers under the slightest scrutiny, it’s never really happened, unless you’re trying to bottom fish for the clients rejected by flesh and blood lawyers or seek to establish yourself as the foremost pro bono lawyer in America.  Many have tried and died, with the moribund blogs of the deceived littering the landscape like tombstones of their failure.  The reason Mirriam didn’t understand the Mashable article is that it’s a mash of fine sounding words without substance.  Fundamental to good marketing is to make things sound wonderful and mean nothing.

In the comments to Mirriam’s post are two comments with additional questions that I will attempt to answer.  First, an easy one from Jamison,

What I don’t understand is the criticism of social media — and the people PROMOTING social media — by the people USING social media.

The criticism isn’t “of” social media, but of the abuse of social media.  People use social media to lie.  About themselves, about others, about social media.  The people doing the criticizing, and I’m one of them, like it very much, but don’t like those who use it to deceive.  Not only are we against lying, as an evil in itself, but the liars brand us all as being part of the scam.  Those of us who don’t lie don’t want to be viewed as part of this scam.  We try to keep the place clean and honest.  Glad I could explain that to you.

Then comes a puzzlement from a surprising source, Norm Pattis.  It surprises me because Norm’s been around a long time, having had 38 separate blawgs since his departure from Crime & Federalism.  Norm had been one of the most incisive, fearless, hard-hitting blawgers around.  If I can find where he hid his Prozac and flush it down the toilet, he may be again.

I am not at all clear about this stuff either. I am puzzled by the heavy mockery of all this, however. We all write for our various audiences. I am inclined to think that anti-marketing is merely one brand of marketing. But I am not really sure.

It’s a puzzlement to me as well, when someone who doesn’t see something as a problem that others do extrapolates that into the assertion that it’s not a problem.  Although Norm has been around a long time, he’s kept largely to himself and avoided the collateral issues.  He’s questioned why I post about it here from time to time, since it’s not on his radar.  I’ve tried to explain, but obviously haven’t done a satisfactory job of it.  As Mark Bennett says, “I can explain it to you, but I can’t understand for you.”

What “we” do is write.  Why is up to each of us to decide, rather than project onto others.  Some just like to write.  Others write for business.  Still others write for validation and approval.  “We” question the motivations of others, which is what “we” often do.  It’s fine to question, but the answers are often elusive.  The answers usually tell more about the questioner than the questioned.

Norm’s inclination to believe that “anti-marketing is merely one brand of marketing” tells me only about Norm rather than anyone else.  Norm once wrote that anybody who read his posts would never hire him.  That was certainly true, at least back then.  Maybe he’s moved into the feel-good camp, where blawgers exude emotions to entice others who share their fee-ee-eelings to join him in a rousing chorus of Kumbaya.  But I’m not really sure.

Mirriam brings her post toward a close by writing:

Here are some things I do understand:  The Supreme Court came down with a decision today saying that you have to actually say you don’t want to talk to the police in order to invoke your right not to talk to the police.   There were ten murders in Baltimore over the past several days, and I’m waiting to hear if I’m on the CJA panel here in Maryland.

I wonder if Mirriam has any thoughts about these law-related things.  If so, one can’t tell.  Jamison says Mirriam is a “kick ass lawyer.”  He’s had lunch with her.  I haven’t.  Maybe one day she’ll decide to become a “thought leader” and then I will be able to tell. I think Mirriam may well have significant thoughts about legal issues. I look forward to finding out.  I wonder if she will ever take the chance.

And one might wonder why I’ve tried to help explain these things that Mirriam, Jamison and even Norm don’t get.  It’s because I like these guys and want to help.  I’m confident that this post won’t get me any clients or win me any kudos.  My guess is that my help won’t really be appreciated, and they may even be unhappy with me for writing this.

Or maybe it’s part of my carefully crafted internet persona designed to create the impression of caring about people while eschewing self-promotion, which in a perverse way, permits me to be self-aggrandizing through the back door.  Then again, this may just be the way people talk among themselves when they are being honest and forthright, with neither hidden agenda nor ulterior motive. 

Of course, these are just my thoughts.  Does that make me a “thought leader”?  I don’t think so.  If nothing else, I’ve given Jamison and Mirriam a link, which should help with their SEO.  That should count for something.