A string of comments on my post about Faisal Shahzad’s pre-arraignment cooperation with the government disturbed me greatly.  My initial reaction was that no one who would say such things, believe such things, had any business defending a person accused of a crime, and I let the commenter have it with both barrels. 

I then calmed down and realized that his attitude was likely shared by many who sit at the table farthest from the jury, and it would be more helpful if I explained my views about things that should never need explanation.  Since I have the keys to this place, I have the ability to go back in time, make my initial reaction disappear and take a mulligan.  The comment  that got me started was:

What “cherished rights” are those? The right to be tried by a jury? How does that work out, usually?

The right to have your guilt proven beyond a reasonable doubt? A jailhouse snitch is usually good enough.

The right not to have to testify with no adverse inference being drawn? Come on.

Don’t tell me you don’t take all this into account when advising your clients.

When your client has more or less told you he’s guilty, when they have him on wiretaps and video doing the crime or confessing to it, what are your options? If it’s a drug sale you play the jury nullification argument. Good luck.

You fight them. Good. Someone has to.

I won’t countenance fabricating allegations. But the prosecutors are sometimes clueless. Is it a bad thing to help straighten them out if you can? How many innocents are not tried or even charged because the prosecutors got accurate information from a cooperating witness who might otherwise have been a defendant?

This is a tough business and a lot of tough decisions have to be made. I’m not saying you don’t have a point, but I just think you might be painting with too broad a brush.

The main body of the comment challenges the notion that there’s any alternative for a lawyer to advising his client to be a rat.  The penultimate paragraph is a justification for snitching, an argument that snitches save innocent people by giving prosecutors accurate information about people who they believe to be criminals.  I’ve yet to see that highlighted in a 5K1.1 letter as a basis for substantial cooperation. 

The came this comment :

It’s almost always impossible to defend from a position of strength. The deck is too stacked. Being ready, willing and able to go to trial has nothing to do with it.

In my opinion there’s only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution’s case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don’t say another word about it until you close.

But note that to play that game you must appear weaker to your opponents than you actually are. Indeed that is part of the reason it works. You really are defending from a position of strength, but others perceive the opposite.

And I said only that you can RELIABLY win this way. Even with something like that, it’s not a sure thing, the institutional momentum in favor of conviction being powerful enough to override even the most solid proof coming from a criminal defendant, even as the most laughable evidence will be credited if it comes from the prosecutor.

Still, I’m glad you get good results being combative from the beginning. If you can reliably win that way that’s great, with one caveat: I don’t believe the adversarial approach applies to anything other than the trial itself. If it comes down to a trial, both sides have to try to win. Outside of that context, two lawyers should be able to discuss the matter sub judice like normal, intelligent and well-informed human beings educated in the relevant law. A power game from beginning to end generally favors the more powerful side – that is, the government, the insurance company, the bank, etc. – in my experience, though I guess yours may be different.

There are many in the ranks of criminal defense lawyers who find the idea of expecting to win, or at least exceed expectations, too difficult if not impossible to accomplish.  The deck is too stacked, they say.  It’s too hard.  It can’t be done.  No one wins.  They aren’t so foolish as to tell this to the defendant when they put their hand out for the money, but in their head, the calculate out the time needed to put on a dog and pony show at a couple of court appearances and then a few meetings at the United States Attorney’s office. 

The client believes he is paying a lawyer for a defense.  The lawyer knows that the client is paying for surrender.  If he can chop off a couple of months, maybe a few years in exchange, the lawyer believes he’s earned his keep.  The client doesn’t actually get a vote in the matter, since he won’t learn of the capitulation until after the money has been turned over.

The lawyer rationalizes his conduct by believing that he knows better than the naive defendant, and that the few crumbs he may get the defendant are better than nothing at all.  Plus, he’s paid for a defense, which is far more time-consuming and difficult than cooperation, which puts him substantially ahead of the game financially.  It’s a win-win, as far as the lawyer is concerned.

The lawyer’s belief is grounded in low expectations.  He expects to lose, to fail, and goes into it with the intention of surrendering his client’s cause.  His expectations will always be met.

My response to the offending comment, after revisiting it, was intended to be helpful:

I don’t know if you’re a criminal defense lawyer, but I don’t think you’ve understood what I’m saying.  It has nothing to do with being combative, though there are times when that’s necessary and we need to be capable of combat when it’s called for.  I’m talking about going into every case with the attitude that I’m going to win, I’m going to find a way to achieve victory.  It’s using every weapon available, turning over every rock, looking for every crack, thinking and rethinking every approach, to find a way to prevail.

We rarely get cases where the facts are in our favor, or there’s a smoking gun piece of defense evidence.  So what?  That’s not what we do.  We take our cases as we find them, and still do everything possible to win. 

But if you start out believing that it’s a lost cause, you will certainly prove yourself correct.  The deck is always stacked against us.  That’s why we have to be better than the other side, smarter, faster, more thorough, and always more dedicated.  Being ready, willing and able has everything to do with it.  Being certain that you can’t possibly win is the surest path to losing.

By no means do I suggest that any lawyer, myself included, can win every case.  But I have never gone into a case, told a defendant that I would be his lawyer and accepted a fee, without believing that I would find a way to defend him. 

It’s so easy to fall into professional depression, to come to the belief that there’s nothing to be done, that conviction was going to be the outcome no matter what, and therefore efforts to win were futile.  Too many feel as if they are banging their heads against a wall, and decide that capitulation is the only rational course.  The deck is stacked against them, against us.  Why bother to try?  Why persist in the naive dream that there’s a chance.  There’s no chance.  Give up.  Just cut your losses off the top and move on to the next legal fee.

If you feel this way, you should not be a criminal defense lawyer.  You cannot do your job of providing a zealous defense if you believe that you will inevitably fail.  You cannot deceive your client by telling him that you will represent him when all you plan to do is babysit him through the cooperation process.  When a defendant looks to you to ensure he receives those cherished rights that you ridicule, that you will strive to find that crack in the overwhelming case, before concluding that there is no hope, you cannot look him in the eye and tell him you will when you won’t.  You’re lying to your client, if not yourself.

And you’re wrong.  It is not hopeless.  There’s no assurance that any lawyer, no matter how good or how much he’s paid, will find that crack in the prosecution’s case.  But it happens, and it happens all the time.  It may not produce an outright acquittal and heartfelt apology from the F.B.I., but it may well produce substantially reduced charges, loss valuations, suppression, whatever.  The lawyer willing to risk his ego and effort will find the crack.  The lawyer with low expectations will never find it.

The lawyer with great expectations may well fail to meet them.  The lawyer with low expectations will be a huge success as he will meet them every time.

Mark Bennett has also written about these comments, and you should read Mark’s thoughts if you haven’t already.

Doug Berman at Sentencing Law & Policy posts about a provocative piece by David Rittger at Cato@Liberty.  No doubt we are all familiar with Pastor Martin Niemölle’s speech:

“THEY CAME FIRST for the Communists,
and I didn’t speak up because I wasn’t a Communist.

THEN THEY CAME for the Jews,
and I didn’t speak up because I wasn’t a Jew.

THEN THEY CAME for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.

THEN THEY CAME for me
and by that time no one was left to speak up.”

Rittger plays off this theme in First, They came for the Sex Offenders.

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

Sure, there is the politicalization of the problem, which I find disingenuous (though isn’t that the nature of politicalization?), but the critical point is an issue that defies labels or finger pointing.  Today’s flavor is sex offenders.  I tend to believe the terrorists are already on the menu as well, though perhaps less obviously.  Neither has a decent lobbying effort or produces empathetic television commercials.  They don’t contribute adequately to political campaigns.

We have been force-fed the belief that these discrete groups are so evil, so wantonly horrible, that they are undeserving of what are described as the “legal niceties” of the Constitution.  We hate them so that reason is overcome by our visceral reactions, images of dead bodies and stories of horrible, disgusting tragedies.  We are hard-pressed to explain why people who have so badly broken the social contract deserve any sympathy or consideration.  There are truly evil people in the world.

Once we break through the wall once, however, it becomes increasingly easy to do so again.  Evil isn’t limited to sex offenders. Or terrorists.  Or drunk drivers. Or gangbangers. Or drug dealers.  Or jaywalkers.  People like me, who speak up for people I despise, are dismissed as clueless.  We can’t appreciate what it means to lose a child.  How would we feel if our daughter was brutally raped and murdered? 

The answer is simple, that I would want to kill the person who touched my child, rip him limb from limb, induce excruciating pain and stare into his eyes until the life flowed out.  I’m no less feeling than anyone else, and all my visceral reactions are intact.  But in the quiet moments when I’m not filled with anger and hatred about the evil that exists in the world, I’m capable of reflecting on why visceral reactions don’t make for sound public policy. 

A commenter yesterday informed me that most of America disagreed with my position.  He’s correct. I am in the minority, more often than I care to be.  But it doesn’t convince me to ignore reason and hop aboard the bandwagon.  It’s often difficult to ignore an easy, seductive path that appears to offer solutions to vexing problems.  It’s difficult to think of how our future plays out if we put aside sound judgment just this one time.  And it would certainly be nice to feel the loving embrace of the majority, slapping me on the back for having forsaken my errant ways and locked arms in the march of the majority.

But I can’t be a tyrant, even if it’s easier and will bring me popularity and appreciation.  You can bet your bottom dollar that I don’t want to be the hero of sex offenders or terrorists, but breaching the wall that separates them from the fundamental rights that accrue to all, even just this one time, cannot be tolerated.  It’s not that we should do it so much for their sake, but because when our turn comes, as I believe it eventually must, there will be no one left to speak for us.

Jordon Furlong at Law21 is either a visionary or the Prophet of Doom, according to how strongly you desire to embrace a future where the law is no longer a learned profession, but just another service trying to keep its head above water.  Jordon views the commodization of law as inevitable.

Lawyers also are under regulatory pressure (in England & Wales through the Legal Services Act, in Canada by the Competition Bureau, and the Missouri lawyers suing LegalZoom for the unauthorized practice of law better hope their suit doesn’t produce the wrong kind of finding). But still we resist new competition through UPL restrictions, we seem to regard technology as a nuisance more than a service facilitator, we routinely warn clients of the dangers of going it alone, and we maintain (patronizingly) that we always end up fixing the messes left by unrepresented clients.

By analogy, Jordon points to what’s happening with realtors as a window on our future:

The Globe & Mail reports on a rising wave of sell-it-yourself home realty, prompted by both Canada’s Competition Bureau and its intention to deprive Realtors of their near-monopoly as well as technological advances that allow people to buy and sell homes without professional assistance. Realtors — and this might sound familiar — have responded by fighting the Bureau’s efforts to open the market, scaring homeowners with the dangers of proceeding without professional assistance, and confidently predicting that these amateurs’ mistakes will simply produce more work for Realtors in the end.

While there are some obvious differences between lawyers and realtors, there are also some obvious similarities.  We both provide services based upon specialized knowledge.  The fees for those services often appear unrelated to the benefits derived, as neither is a profit center and both are viewed as a drain on revenue.  Most significantly, many people are uncertain that our services are necessary, and harbor a belief that they could have (or at least, should have) been able to do just as well without us.

When Jordon highlights our resistance to “new competition through UPL restrictions,” it suggests that he sees the future of law disconnected from lawyers.  Whether this means that companies that sell legal forms are the future, or getting legal advice from unknown avatars on the internet, or unbundled services by undisclosed lawyers, is unclear.  Jordon’s point has long been that all these forms exist and are growing, while we sit in our offices pondering when the phone will ring.

The primary cause of discontent with lawyers doesn’t strike me as all that hard to figure out.  People perceive lawyers as doing a lousy job of it and charging too much for the pleasure.  The former aspect has two components, the first being that the nature of the law isn’t an exact science.  When we hire a plumber to fix a leak, his job is done when the leak is gone.  Law doesn’t work that way, and lawyers can’t guarantee that they can produce what the client desires. Whether in litigation or transactions, a lawyer can fight for his client’s interests and desires, but faces an opponent doing the same for his client.  Someone isn’t going to get what he wants.

The other factor is that there are a lot of incompetent lawyers, or lawyers who just don’t care enough to provide competent services.  We’ve got far too many lawyers, and our law schools keep pumping out more.  This can be addressed, but won’t until half the law schools are shuttered, and lawyers police our own ranks to rid ourselves of the bad ones.

Ironically, one of Jordon’s beloved futuristic cures, technology, is likely a significant culprit in the dissatisfaction with lawyer incompetence.  Internet marketing allows the most mercenary, inexperienced and/or incompetent lawyer to promote himself as the most experienced, competent, caring lawyer alive.  Suckers believe what the marketing promotes, to the consumer’s detriment.

The second primary cause of discontent is the cost of legal services.  The simple fix is just to cut legal fees in half, but it becomes a problem when lawyers aren’t charged half price by plumbers.  Even to those who have chosen to practice law because it’s what they want to do with their lives, there remains a desire to feed one’s family, buy the occasional pair of new shoes and put gas in the jalopy.  Practicing law should not require an oath of poverty.

We can certainly reduce some costs with adoption of technology, but I suspect that applies more to some smaller niches than law in general, and the savings is relatively inconsequential. It also involves certain compromises, which is clearer to those of us who practiced before technology was so widely adored.  Computers are great, but spellcheck isn’t a substitute for a human proofreader.  Chatrooms and listservs create a sense of community, but the tenor of discussion can’t be compared to sitting down with a bunch of compadres in the same room swapping stories and advice. 

It’s unlikely that Jordon would disagree that public use of online legal forms, or free internet advice, or unbundled services, have their faults and downside.  They do, however, provide an alternative to costly, and possibly incompetent, legal services.  In many instances, these lawyer-substitutes will end up satisfying people’s legal needs, or at least do no harm in the process.  In some instances, they will result in disastrous consequences.  

So what is it that Jordon would have us do to greet this future?  Some have suggested we dumb-down the law to make it comprehensible to anyone with a third grade education, thus allowing regular folks to circumvent lawyers and have a fighting chance to figure it out for themselves.  People of good will believe that their positions are reasonable and just.  So do their adversaries.  Do the math.

Will this result in “anarchy and blood in the streets,” as derided by Jordon?  Maybe some, as it happens occasionally now.  It will, I believe, result in increasingly greater dissatisfaction with the law and the processes developed over the past millennium to resolve disputes and defend the rights of individuals against the sovereign.  If using lawyers sucks, going it alone sucks worse when you’re on the losing side.

Eventually, someone will come up with the concept of a group of individuals, specially trained to provide legal services to individuals, vetted for competence and empowered to hold themselves out to the public as being capable of serving them in a legal capacity.  I wonder what we might call such people?

Maybe the public won’t appreciate why lawyers came into being until they’ve had a chance to duke it out without lawyers and see how everything goes.  In the meantime, it doesn’t seem like such a great idea to either succumb to half-baked demand for lawyer-lite, cheap but unfulfilling. 

If that’s what being a lawyer is reduced to, I would prefer to be a plumber.  At least then I would feel the satisfaction of knowing that I stopped the leak.

Clap on.  Clap off.  Nothing.

The City of Los Angeles has threatened an economic boycott of Arizona in protest of its new immigration law.  That would be the one requiring police officers to hunt down swarthy looking individuals to make certain they are properly stamped.  Did Los Angelinos really think they could strong arm Arizonians?  Hah!

Via NBC de LA :

An Arizona utility commissioner said he’s willing to pull the plug on Los Angeles if the city goes through with a boycott of his state.

In a letter to the city of LA, a member of Arizona’s power commission said he would ask Arizona utility companies to cut off the power supply to Los Angeles. LA gets about 25 percent of its power from Arizona.

And it’s a carta excelente tambien.

If an economic boycott is truly what you desire, I will be happy to encourage Arizona utilities to renegotiate your power agreements so Los Angeles no longer receives any power from Arizona-based generation.

I am confident that Arizona’s utilities would be happy to take those electrons off your hands. If, however, you find that the City Council lacks the strength of its convictions to turn off the lights in Los Angeles and boycott Arizona power, please reconsider the wisdom of attempting to harm Arizona’s economy.

Electrons off your hands.  Heh.  Clearly, this guy knows his electric.  Of course, if LA doesn’t want to send its business to Arizona, it shouldn’t have to.  And if Arizona doesn’t want to send its electrons to LA, it shouldn’t have to.  And if they set up police roadblocks at the borders with well armed militia-types, and they don’t want any limousines with California plates coming in, well, there’s a right for that too.

For quite a while, the federalization of America has left us to think that states were a quaint anachronism, pretty much flags and television commercials for tourism dollars, but otherwise largely the same as part of the greater American whole.  After all, we’re American, and kids in uniforms are dying for the American way of life even as I type.  Nobody is out there claiming that we’re fighting in Afghanistan or Iraq for the Arizona way of life, or the California way.

As policy differences between states become manifest in ways we haven’t seen in generations, it raises some interesting questions and brings back reminders of the days when our nation was sufficiently at odds with itself to divide.  It’s hard to imagine war breaking out between LA and Arizona, but then Governor Jan Brewer, having redefined reasonable suspicion and banned ethnic studies in public schools to prevent an outbreak of knowledge, is a fierce defender of our American way of life.

The biggest question is whether anybody would really care if Arizona, Texas and Florida decided to go it on their own.  Imagine the savings in medicare and welfare alone.  Seriously, how many people from LA go to Arizona anyway?

H/T Turley (to whom I’m far too kind)

Some have noticed how my posts, between the moment I hit the publish button and the time you finally get around to reading, have substantially fewer typos.  No, it’s not because I’ve invented a blogging program that cleans up the errant finger poke of an old lawyer.  It’s the kindness of others, upon which I rely.

Whenever some snarky youthful lad would comment that I used the wrong word, spelled something wrong or included (or failed to include) an apostrophe, causing massive pain to his law review editor eyes, I would invite his aid to edit my posts.  Regular readers know that they come at a quick clip, and aside from spellcheck (a generally worthless endeavor but one I use out of habit), I never edit my blawg posts.  No, they are not appellate briefs, and no, they do not receive the attention given to work on behalf of clients.

Despite my invitations, none of my snarky lads ever lifted a finger to help.  However, some others have.  For a while, Jdog would clean up my act.  Ed at Blawg Review would let me know my many errors.  But after Jdog was co-opted into the Obama Administration as First Muse, and Ed took up travel on the professional golf circuit, I was back to where I started, alone and unedited.

To clean up my miserable mess, an angel appeared.  Marilou Auer, renown on twitter as @MarilouTheClerk, felt my pain and anguish.  It started with an email, a few typos corrected.  Since that first email, it’s never been the same.  

Thank you, Marilou.  Thank you for the gift you give me every morning when you let me know what I’ve done poorly and what I can do to do better. 

I asked Marilou to tell me about herself, aside from the excellent taste shown by her preference for the New York Yankees despite living in Virginia Beach, and here’s what she said:

I’ve been a legal secretary, with a few interruptions for other ventures and having two babies in two years, for 35 years or so. I’ve been blessed with some good employers who taught interesting things.

I live in Virginia Beach and am currently not working outside the home but am learning to do virtual-assistant-type work with a friend from another state. I nearly failed English class every year in high school and the one year of college that I attended. My grammar knowledge and spelling ability are a direct result of my Mother’s insistence on speaking correctly and reading to me daily until I was old enough to read for myself. Those were great gifts.

I proofread blogs as a substitute for the morning crossword puzzle. Reading carefully and concentrating gives me the mental wake-up that I need to start the day. I never mean to be insulting when I correct other people’s work, I just like the challenge and am thrilled when somebody welcomes my suggestions. It’s hard for writers to catch everything when they’ve seen their work several times already in the process of writing and editing and rearranging, so I enjoy being that “fresh eye” that even the best writers sometimes need. And I learn something from every post I read. It’s a win-win for both of us.

I’m always a little nervous the first time I send an e-mail to a lawyer with a suggested change. I worry that he might be offended.  There are some who believe a blog post isn’t worth taking the time to correct. I disagree and believe when a lawyer takes the time to write a post for his peers, he should make his post the best it can possibly be. Lawyers never know when their writing is going to be quoted, and a lawyer’s writing reflects the attention to detail with which he can also best serve his clients.

It’s kind of embarrassing to write about myself, but I wanted to be sure to say that I didn’t mean to act as if I think I know it all when it comes to spelling and grammar; I just like proofreading! The things that I suggest for correction are things that anybody would find; it’s just that I take the time to make the suggestion instead of just ignoring the error. And if just one person reads to their kid more, my job is done for the day!!

If you want any personal stuff, I have three daughters who are all doing well as adults, and I have a two-week-old grandson who has been a life-changer for me in a number of ways. I’m working on things that most people are working on, including losing weight, getting more exercise, finding mental challenges, and downsizing my possessions!

And I like you proofreading my stuff.  I’m very glad it’s a win for you, because it most assuredly is a win for me. 

After all the talk about whether terrorists get to enjoy our nation’s “legal niceties” like Miranda, the hard story is that Faisal Shahzad, the so-called Times Square Bomber (but more appropriately called the Fizzler) wouldn’t stop talking.  They could have warned him once an hour, and still the guy would talk.  Miranda, shmiranda.

When he was finally brought in for arraignment before Magistrate Judge George Yanthis, the government disclosed that this guy was a national treasure, giving up all kinds of great information.  He’s the mouth that launched “hundreds of agents in different cities working around the clock” to do critical national security stuff.  Big stuff. 

Now what are they going to do about him?

Shahzad may be brilliant, or just another guy who can’t shut his mouth, but either way, he’s managed to put the government in a jam.  From the New York Times :

It is possible he will continue to cooperate, and ultimately his fate may rest on how his cooperation is viewed. While there is little doubt that the information he provided has helped in the investigation of the attempted bombing, whether his assistance will help him is a different matter, one that has stirred discussion in the legal community.

Ah, cooperation.  The “saving grace” from a grateful government, the answer to every miscreant’s prayers.  No matter how bad your wrong, show the government some serious love and maybe all is forgiven.  Or maybe not.

By waiving his right to a speedy court appearance and, most likely, lacking a formal agreement that a lawyer might have negotiated, he may have undermined any leverage he had, said Anthony S. Barkow, a former federal terrorism prosecutor in Manhattan who now runs a center on criminal law at New York University.

“I think he is doomed,” Mr. Barkow said. “He has confessed to an extraordinarily serious offense that carries with it essentially life in prison.”

Doomed is bad.  If he’s doomed, after showing love the likes of which hasn’t been seen since Sammy “The Bull” Gravano, why then talk to agents?  The point of showing love is to obtain the hotly desired 5K1 letter from the government, the one that informs the judge at sentence that the defendant has provided “substantial assistance” to the government. 

This is the letter that launched a million rats, not to mention the rat-making industry for the criminal defense bar for lawyers who cajoled their paid-up clients to spill the beans on the defendants’ mothers rather than prepared for trial.  Why fight as long as there is someone left to give up to the government?

Not even the rosiest of rat-lawyers would suggest that Faisal will get a medal for the good things he’s given the government.  But then, since his charges carry life in prison, there’s a broad spectrum of reduced sentences available to him.  Will his cooperation serve him well?   Will a sentencing judge, upon reading his good works, reduce his 198 year sentence to 188? 

Of course, Faisal may not be cooperating for the sake of a benefit at sentence.  It’s always possible that a guy who wanted to blow up Times Square on one day wants to fulfill his duty as concerned citizen to the American government by helping to thwart terrorism the next.  People have changes of heart all the time.  At least that’s what they say when they take the witness stand, after they’ve flipped.

It’s not like the government needed Shahzad’s cooperation to make their case.  The evidence, according to government accounts, was overwhelming from the outset, and he was dead before he started talking.

And given the public accounts of evidence against him — including a key to his house found in the vehicle containing a crude bomb — the case against him may have been almost ironclad before he started talking. “Just the fact he was on an airplane trying to leave the country was brutal,” said Joshua L. Dratel, a lawyer who has represented many terrorism defendants.

Josh is one of the handful of lawyers who has done the heavy lifting with terrorism defendants, and he knows when the government’s got someone nailed dead to rights.  The fact that the government didn’t need Shahzad’s confession to convict him, however, doesn’t preclude his providing information about others, and if Shahzad’s information is legit (and not just about a bunch of illegal Taliban immigrants avoiding Arizona), that Shahzad was personally a goner doesn’t mean that he’s not a valued friend of the government when it came to all of his buddies.  And our government has to buy its valued friends.

But if Barkow is right, how does the government convince the next bomber (let’s speculate and call him the Armpit Bomber since shoe and underpants are already taken) to spill his guts?

Gerald L. Shargel, the veteran defense lawyer, said he thought prosecutors would have to offer some sort of benefit to Mr. Shahzad for his cooperation, for reasons that went beyond his case.

“What happens to cooperators is all about message,” Mr. Shargel said. If he received no consideration and was given the penalty of life without the possibility of parole, Mr. Shargel asked how that would be read by the next terrorism suspect who was apprehended. “What motive would that person have to cooperate?” he said.

So what exactly does the government do to grease the tongue of the cooperative terrorist?  There’s always virgins, if you can find some in the Southern District of New York.

My favorite marketing philosopher, Seth Godin, notes that “there’s an awful lot of work put into the last ten percent of quality.”

Answering the phone on the first ring costs twice as much as letting it go into the queue.

Making pastries the way they do at a fancy restaurant is a lot more work than making brownies at home.

Laying out the design of a page or a flyer so it looks like a pro did it takes about ten times as much work as merely using the template Microsoft builds in for free, and the message is almost the same…

Except it’s not. Of course not.

While it’s not as obvious to figure out how this translates into the practice of law, it remains every bit as true.  There is an initial problem, however, that must be overcome.  Before one can strive to reach that last 10% of quality, one needs to know what quality is. 

In Godin’s first example, answering the phone rather than letting it go to voice mail, the goal is clear and simple.  His second example, pastries, is a bit harder to achieve.  Do you know what a really fine pastry is?  Chances are that you think you do, you know what you like and expect others to be satisfied with the same.  Have you taken the patisserie tour of Paris lately?  You might be surprised to learn that the pastry from your local bakery isn’t quite up to snuff.  In fact, it’s awful.  You just don’t know any better.

A lot of time has been spent reviewing the work of other lawyers.  Sometimes, I’m blown away by the quality, the depth of reasoning, the thoughtfulness and effectiveness of the work.  Other times, it’s less than impressive.  On occasion, it’s just awful, particularly when it’s some generic cut and paste job demonstrating a woeful failure to put in the effort to do competent, no less good, work.  When I speak with the writers of the really awful work, they never (with a few notable exceptions) think that they have deliberately failed to produce quality work.  They believe that they’ve done at least a perfectly adequate job, if not a good job. 

Godin’s admonition, about putting in the effort to achieve that final 10% that distinguishes real quality, is lost on them.  They aren’t ready for it yet.  Before one can hope to achieve mastery, assuming mastery can ever really be achieved, one has to be capable of understanding what mastery is.  They are busy trying to achieve journeyman status, without the slightest clue of what the work of a master looks like.

This has become increasingly more apparent, and problematic, since the growth of computer technology and the advent of the internet.  Listservs routinely include requests for motions or briefs on a subject.  They are not merely indiscriminate requests, but requests that ignore that the creation of these documents is what our clients pay us to do.  Real estate contracts 30 years ago may have included a page or two as a rider, but today routinely include a 20 page rider of terms and conditions inserted one at a time over a period of years until they become a behemoth of irrelevant provisions.  Briefs recite paragraphs and pages of argument that get recycled into the next generation.  Most of the time, the lawyers are thorough enough to remove the name of the last user in the body of their work.  Sometimes, an old name slips through.

Today, lawyers with a few week’s experience are writing blawgs about how to be great lawyers.  They write of their experience (often too recent for the sweat to dry) as if it’s an epiphany.  How accurate some of these experiences are may be in doubt, but they often cast the writer in a glowing light, showing how he or she masterfully seized victory from disaster (with a due nod to self-deprecation so as to avoid looking too smarmy). 

I love a good war story as much as the next guy, particularly when they carry a worthy lesson along for the ride.  But much of what I read provides a different insight than what the writer intended.  It informs me that had the writer put in the effort beforehand, he wouldn’t have found himself in that situation. It tells me that the writer was sloppy, careless, superficial in the process of reaching the point of the great story.  Oftentimes, it tells me that there was a far better solution to the problem, and the writer doesn’t realize it.

What’s often left out of these fascinating stories is that the lawyer doing all the pontificating has little to no experience.  Other times, the lawyer has plenty of experience, but it’s pretty bad experience, working under untenable conditions and not realizing that they don’t know how to practice law the right way because they’ve never had the ability to do so.  It’s not their fault.  They just don’t know any better.

Sometimes, other neophytes will tell you how they share your experiences, feel your pain, enjoy your stories.  Great, a support group bolstering mediocrity.  Even worse, non-lawyers hop aboard to appreciate your depth of analysis, satisfying the expectations of those who don’t know any better.  This should be as clear a clarion call as possible that something is seriously awry.

It used to be that people spent some time learning before they tried to impress the world with their knowledge and expertise.  Those of us who care about achieving that last 10% of quality that Godin writes about realize how right he is about the difficulty of reaching the pinnacle of quality, mastery, achievement.  We may never reach it, but we will never stop trying.

Consider that you will never achieve quality if you don’t have a clue what quality is.  Consider whether you want to announce to the world your cluelessness by writing about your exploits over the first 12 minutes of practice.  Or am I completely wrong about your purpose, and this is all to score the next thousand dollar felony that walks into your office so you can plead ’em out at the first appearance? 

Scott Hensen at Grits for Breakfast  picked up on a discussion at a prosecutor message board about what he calls “penny-ante” criminal cases, such as cyclists who fail to obey traffic laws or pedestrians walking on the wrong side of the street.

Scott conceded that cyclists could conceivably pose a safety threat, but

It’s one thing to ticket cyclists violating traffic laws, but ticketing people for walking on the wrong side of the road? That can only be a priority when police have WAAAAY too much time on their hands. It’s nigh unbelievable to me that any case of walking on the wrong side of the road ever makes it all the way to a jury! What an outrageous waste of time and taxpayer dollars! These examples show how a small town like Corsicana might end up locking people up for 3,000+ bed days last year for fine-only Class C offenses.

There are two thoughts about police and prosecutors bothering with these “pointless” offenses.  As noted in the comments, they are used as a pretextual excuse to stop and challenge people in the hope of finding real crimes and open warrants, allowing police to search those who are using bicycles to transport drugs or run background checks to see if someone is wanted.  The flip side is that these petty offenses make for a decent revenue raising opportunity.

Scott then asks a fascinating question:

Awhile back I read a law review article – I cannot now recall the title or author – which posed the question, if it were possible to construct a machine that would allow detection of every law violation and ensure 100% enforcement, should the machine be built?

There is a law or regulation covering essentially every aspect of human existence.  Over time, lawmakers with too little to do create the rules that keep us from bumping into one another by telling us to keep to the right.  They protect us from ourselves by telling us to wear seat belts and helmets, and eat less salt.  They appease grieving parents and outraged communities by crafting laws named after dead children that duplicate, triplicate, existing laws with minute additional requirements.  In isolation, some people applaud these laws as serving a good function.  Proponents are always well intentioned, but they become part of the vast mass of laws regulating us.

For every regulation, there must be a consequence for its violation.  When Harvey Silverglate wrote Three Felonies A Day , this could have been his inspiration, even though Scott’s referring to petty offenses.  The point remains that, as a society, we seek the elimination of crime and encourage and support the police in their efforts to enforce our laws.  We do not, however, think much about the scope of our laws that render each of us a criminal, to some greater or lesser extent.

If there was a machine that would detect every violation of law, we would all be found guilty of something.  Granted, most of us would be prosecuted for petty, stupid offenses, but they are offenses nonetheless.  If they are so petty and stupid, and if we wouldn’t want to be prosecuted ourselves for them, why do we support their existence, enforcement and prosecution for others?  Largely because we don’t think it will ever happen to us.  We don’t mind unfairness to others anywhere near as much as we hate it when it happens to us.

The machine would likely put us all in a cell, at least for a brief period of time.  There’s a serious question of who would arrest us, given that the cops would likely be in the cellblock with us, probably for something more serious than what we’re in there for.  But given that this is all theoretical, let’s not get caught up in the details.

The point was well summed by this commenter at Grits:

Allowing these type of stops for silly things to be used as pretexts for searches is one of the reasons Texas is now a police state. Why not just do away with the pretext. Just allow officers to stop, detain and question anyone they wish anytime they wish. Take away the pretext. Would there really be any practical difference?

If it was put up to a popular vote, my bet is that most people would support the authority of cops to stop at will.  That’s because they only expect them to stop the other guy, the criminal.  Not the good people like them.

What makes this remarkable is that it appears in the the ABA Journal , the publication that’s long touted the demand for work/life balance and faux legal rebels, who have “earned” their stripes by buying a first generation iPad and set up shop next to a vente latte.  Still, when is the last time anyone endorsed the notion that the discontent of the Slackoisie might be resolved by a return to professionalism?

William Lee, the co-managing partner of Wilmer Cutler Pickering Hale and Dorr, and former General Electric general counsel Ben Heineman make out their case in an article for the American Lawyer.

“It is now time for a new paradigm for law firm leaders, as past fissures in firms, caused by relentless business pressures, begin to crack open from the earthquake of the Great Recession,” they write.

The idea is outrageous.  A profession grounded in dignity, integrity, excellence rather than unrestrained self-promotion, self-aggrandizement and an anything-for-a-buck mentality.  As Turk noted, the race to the bottom has finally hit the urinal.  Could this finally be the bottom?

Having been assaulted by the shrill screams of “third wave” lawyers cum marketers cum internet rock stars that everything is different now, that the internet changes everything, that every precept of professionalism upon which our responsibility as lawyers to our clients is out the window, and that we’re not only allowed to strut the internet in hot pants, but required to do so or die,  Maybe this new wave is what’s sucked the will out of lawyers to live up to the demands of a profession?

But it won’t be easy. Firm leaders will have to raise the issue in extended discussions with law firm partners, they say. “And some partners will certainly view the ideas expressed here as quaint or, worse, a threat to their autonomy or markets, or civilization as we know it.”

The partnership will have to move away from a mechanistic “eat-what-you-kill” mentality that rewards only top business-getters, they say. Associates should be treated as respected colleagues rather than hourly billing machines “as if they were Charlie Chaplin in Modern Times.” Firms should redefine productivity in a way that serves their clients. And top leaders should set the example, perhaps by taking out less money than they are due.

In the 1980s, as barely educated Wall Street bonus babies were pulling down numbers that shamed top firm partners, refusing to talk to them at parties for their sensible wing-tipped shoes and lack of hand-ticking on their bespoke cashmere blazers, it was driving lawyers absolutely nuts.  How could these scoundrels, learning the trade on a squawk box, come home with checks bearing twice as many zeroes as theirs?  It was shameful.  Something had to be done.  And so devolved the profession of law into a business, as crass and carry as those Masters of the Universe.

From there, it was only a hop, skip and jump for those who never knew a time when law was a profession to exalt work/life balance and pure, unadulterated commercialism, selling themselves like new and improved laundry detergent.  And with this great new medium, where every lawyer with 12 minutes of practice could claim that he was the most experienced, caring and wonderful lawyer ever, ever, ever.

Many can’t conceive of a time when there was intrinsic pride in becoming a member of a learned profession.  Some likely think we wore waistcoats and breeches then.  So quaint and antiquated.  What ignorant dinosaur doesn’t realize that those days are long gone, when there was pride in our work for its own sake.

For me, I was reared by parents steeped in the lessons of the Great Depression and World War II, where the only things no one could ever take from you was your education and integrity.  There was no guarantee of wealth, but an absolute assurance that you would be able to go to sleep at night knowing that you’ve fulfilled your obligations to those who placed their lives in your hands.  It meant more to know that you served a purpose by helping others than that you bought a shiny new toy.

It’s been a long time since I’ve had much nice to say about the ABA Journal, but this article by Debra Cassens Weiss is one of the first things I’ve seen there in a very long time that suggests that there’s still hope for the return to honor of a once noble profession.  Maybe the time has come to stop looking for comfort and succor in all the new places and return to the lost concepts that once made us proud to be lawyers.

It’s not easy to be a stand-out criminal defense attorney.  Jerry Guerinot has managed to accomplish this difficult feat, earning recognition as the lawyer with more clients on death row than any other, according to Adam Liptak.

A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.

Twenty of Mr. Guerinot’s clients have been sentenced to death. That is more people than are awaiting execution in about half of the 35 states that have the death penalty.

Of course, that doesn’t mean that it’s Guerinot’s fault.

“The easy ones, somehow, never came to me,” he said. “I think it’s a recognition that if I represent them, the state is in for one hell of a fight. Nothing goes down easy.”

Of course, that doesn’t mean that Guerinot’s self-assessment is accurate.

“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said.

Of course, not every lawyer who has defended against a capital charge and lost would agree.

There are plenty of things to be said about the massive failure demonstrated by Guerinot’s spectacular record.  And others are quoted saying some of them in Liptak’s column, speaking to his failure to put in what most would consider to be minimal effort in a garden variety drunk driving case, except that his clients are facing execution. 

It seems to boil down to a failure to conduct even rudimentary investigations, said David R. Dow, a law professor at the University of Houston and the litigation director of the Texas Defender Service, which represents death row inmates, including not a few of Mr. Guerinot’s former clients.

“He doesn’t even pick the low-hanging fruit which is hitting him in the head as he’s walking under the tree,” Mr. Dow said.

How bad a lawyer does one have to be before being held up for singular ridicule?  Guerinot sets the bar very low.  He’s a hard act to follow, based on his numbers alone.  But now there’s good news, and bad news.

Mr. Guerinot, for his part, has given up capital work and now handles more ordinary criminal cases, on a volume basis. An analysis in The Houston Chronicle last year found that he had represented 2,000 felony defendants in 2007 and 2008 — far above the caseload limits recommended by bar associations and other groups that take criminal defense work seriously.

No more defendants will be executed because of Guerinot’s representation, but many more defendants will be convicted.  Courts from Texas to Washington, D.C. appear aware of Guerinot’s incompetence, but nobody seem inclined to do anything about it, whether to rid defendants of this blight or to help the defendants infected by his representation.  And Guerinot continues to practice law, and his former clients continue to sit on death row.  Plenty of sighs, but no pen stroke to end the madness.

What if Jerry Guerinot was a very nice fellow?  Witty and well-intended, the sort of fellow who would make friends easily and charm other criminal defense lawyers with his supportive and empathetic thoughts.  But for Liptak’s revelations, he could join the blawgosphere and in no time at all, find himself surrounded by caring criminal defense lawyers proclaiming him a “kick ass lawyer.”  That seems to be the phrase most favored lately, though it’s unclear who is doing the kicking and who is getting kicked.

Over the past year, a spate of criminal defense lawyers from various parts of the country have joined the practical blawgosphere, with a vengeance.  In the past, Niki Black pointed out to me that the criminal law blawgosphere was a clique of sorts, with a handful of old-time blawgers who were both critical of, and reluctant to, let new people into the fold. 

Her point was well taken, though it seemed to me that it was more a matter of distinguishing those whose involvement was too self-promotional, too soft, too lacking in substance, to break their way into the circle.  One of the virtues of the practical blawgosphere was the ability to survive critical peer review.  It wasn’t enough that Guerinot was a nice guy to join the sphere and receive the support of others.

This appears to be changing.  It’s becoming more of a big group hug than peer review.  Nice, charming, witty posts, even though they reflect nothing of depth or consequence in the law, have become enough to earn the admiration of other new-comers, and even some old-timers, to the blawgosphere, and the title “kick ass lawyer.”  Being liked by another blawger seems to be enough for someone to be endowed with great skill and worthiness, even though nothing exists to suggest that it’s in fact the case.  Many who have fallen into this circle have very little experience, and very little history to know whether they deserve it, or whether they deserve the right to bestow it on anyone else.  This no longer seems to matter, to them or others. 

I fear that some of them might be more Jerry Guerinot than Gerry Spence.  I don’t know.  I can’t tell from what they’ve written whether they are any good or not.  It’s not that I don’t think they are likable, charming or witty, though the blind search for companionship on the internet is also disturbing to me. 

Some people think I’m too miserly with my respect.  It’s not a scarce resource, so I can hand it out to as many people as possible and still have more to give.  But then it doesn’t mean anything, if I give it to anyone who is nice to me.  I would like to think that one of the things that I’ve accomplished during my career is the establishment of credibility, and when I show my respect for a lawyer, it means something.  Others, old-time, battle-tested veterans, have fallen victim to flattery and sheepishly allow themselves to be sucked into the group hug.

As I watch others hand out the title “kick ass lawyer” to people they don’t know, attribute skill, courage, worth to anyone who will hug them back, they devalue themselves, as well as the battle waged by those who came before them to establish the credibility of the blawgosphere to distinguish between criminal defense lawyers who demonstrated their worthiness under the scrutiny of their peers.  We were harshly criticized for our refusal to endorse any pandering fool who showed up, but we withstood that criticism in order to maintain the integrity and quality of the lawyers and writings we embraced.  It wasn’t easy to obtain recognition, and it wasn’t meant to be easy.  Anybody could earn it, but it had to be earned.

If what you seek on the internet is validation, support, recognition, and you are willing to sacrifice your credibility and respect to pay for it, then proclaim that people you don’t know are “kick ass lawyers” so that they will say nice things about your in return.  Just remember that your new best friend may be Jerry Guerinot, the “undertaker for the state.”