Over at VC, Eugene Volokh posts about the Iowa Supreme Court’s decision in State v. Cox, in which the court held that the use of propensity evidence, permitted by Iowa Code § 701.11, violated due process.
The policy against admissibility of general propensity evidence stems from ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.’
Of all the various forms of evidence, propensity is among the most insidious. It taints the defendant, labels him an inherently bad person, and compels a jury to believe that he deserves conviction regardless of whether he committed the particular crime for which he’s on trial. It’s a pure appeal to prejudice.
Eugene notes of the Iowa decision:
In this, the court departed from the view of federal courts and most state courts, and adhered to the minority view, which until then apparently was followed only by the Missouri Supreme Court.
This statement requires some clarification, as it gives a very misleading impression. While true of the use of prior bad acts for sex offenders (see FRE 414 and 415), it is not the general rule. In New York, the rule is Molineux, and Larry Cunningham offers a good explanation (via Judge Barry Kamins) at his modestly named New York Criminal Law and Procedure Blog .
But Eugene then offers a very curious, albeit unexplained, position.
An interesting decision; I’m not sure it’s right, but I wanted to pass it along. Since it interprets the Iowa Constitution, the U.S. Supreme Court can’t review it, though Iowans could amend the constitution if they disapprove of this decision.
No explanation is given as to why Eugene doesn’t think it’s right, and whether it may relate to the sex offender aspect or whether Eugene thinks propensity evidence is a good idea in general. It would be appreciated if Eugene could clear this up for me.
The distinction when it comes to sex offenders is clear. They are, as far as the criminal justice system is concerned, incurable. They are recidivists. Once a sex offender, always a sex offender. Therefore, their prior history (including uncharged bad acts) leads to the inexorable conclusion that they must be guilty of any new crime charged. So the argument goes.
The obvious response is that if a defendant is alleged to have committed a crime, prove the crime, not the defendant’s bad character. Putting aside the trial within a trial aspect of using uncharged prior bad acts, itself a nightmare to defend, the use of propensity to smear a defendant seems far too obvious for someone as smart as Eugene to ignore. It’s the sex offender aspect, then; that they are so hated, and so presumed to reoffend, that they neither deserve a fair trial nor the slightest concern on the part of good people. They are animals and unworthy of a fair trial. This is borne out in the comments, where most of Eugene’s readers make clear their feelings toward sex offenders in particular, and criminals in general.
Most people, including lawyers, find propensity compelling. This is what makes it so dangerous. It is marginally relevant, but it is also the most unduly prejudicial evidence available. As bad as it is for most, it’s worse for anyone accused of being a sex offender, since that characterization already creates a taint that few are able to overcome. There are few offenses that can turn a stomach faster or harder, particularly when the offense involves a child.
As much as the public would be just as happy to take anyone accused of a sex offense and hang them in a tree, after which they can have as fair a trial as they want, this is precisely why propensity evidence should not be permitted at trials involving alleged sex offenses. The mere allegation of a sex offense carries overwhelming prejudice. To further remove the need to prove the crime, by supplanting proof with the prejudice of propensity, reduces the trial to a farce. Defendants should be convicted for what they did, not because they’ve been smeared in the process.
Outside of some very limited circumstances where prior bad acts carry particular relevance, most of which occurs only after the defendant has raised issues as discussed in Molineux, the use of propensity evidence is fundamentally wrong and foreign to the constitutional presumption of innocence and the demand of proof beyond a reasonable doubt. If a person is sufficiently proven to have committed a crime, then convict him. But not because we hate him for what he did before.
While I owe no explanation, I offer one. No doubt a week, or a month, or a year from now, I’ll be hearing the same crap that I hear now, “I think I should be allowed to put a link to my blog in your comments,” which is one of the systemic problems with this format, but as a courtesy to those who complain unmercifully to me now, here’s the deal.
My general policy is not to allow links in the body of comments. I also ban commenters who include commercial links to their names, but that’s because they are only doing so to gain backlink benefit on Google, and they bring nothing to the conversation as far as I’m concerned. Disagree? I don’t care. This isn’t a democracy.
There are times when a link in a comment makes greater sense, or is less objectionable to me, than others. These tend to have a couple common factors. First, they come from someone I like, a regular commenter who has contributed regularly to the conversation. They get greater latitude than others. First time commenters get no latitude. Unfair? Tough.
Sometimes links are to news reports that add to the information that forms the subject of the post. This is the sort of link that I’m most inclined to allow, but only when it goes to a news source, not a blog post about a new source. Sometimes the links are to a study that supports a commenter’s position, which I’m also inclined to allow provided that it’s on topic (note that many comments go off on a tangent that the commenter finds “fascinating”, or the study is conducted by some fringe group that comports with the commenters belief in imminent alien invasion).
More often, links are to blogs or websites of others who are trying to either trade off Google juice or skim some eyeballs. This is not the way to get people to take a look at your budding blog, but it is a really quick way to get me to embarrass you publicly. Yes, I know that marketers tell you that this is the magic secret to blogging success, but the marketers are morons. It’s not my fault that you chose to heed the biggest idiot in the room.
Sometimes, commenters post links to their posts on the same/similar topic because they think their views are so fascinating. If that’s the case (and it may be), then let people go to your blog and read to their heart’s content. But unless I think your views are fascinating, you don’t get to plug yourself. That’s my choice, and I reserve it exclusively to myself. You disagree? So what? And by the way, you’re not that fascinating.
The inclusion of links can also kill, rather than enhance, a conversation. In a comment to my Blawging 101 post, Jon Katz’s comment consisted of links to two old posts of his. While Jon’s a friend, he only comments to defend one of his sacred cows or to try to grab some readers for himself. If he wanted to engage in the conversation, he could have written any advice he wanted. Instead, he wanted to pull people away from here to his blawg, which is primarily intended to market himself (which is why he rarely links to anyone else in his blawg). This defeats the purpose of having a conversation. If he had something worth saying, say it. In contrast, Carolyn Elefant , who has written far more (and far better) on the subject commented, and included in the comment her thoughts so that it could be part of the conversation here. That’s how comments should be.
And as long as I’m on the subject, another commenter noting my deletion of links decided that it was a good idea to include in a comment of his own that he wants links and that I should change my policy to make him happy. I banned him. He responded in an email that he thought I had more class. I don’t, and told him he was an asshole. That’s that. Nobody has a right to comment, and I have no obligation to tolerate anyone I don’t like. I feel no qualms about banning people who annoy me.
An overarching issue with allowing links in comments is that whenever I allow one, more invariably follow. There are a lot of people who want to get their link into my comments, for a variety of reasons. This creates far more work in cleaning up comments than I care to do, and so I am quick to delete links to avoid instilling the belief that everyone is entitled to do as they please in the comments. Many readers think that they have some sort of right to have things their way. They don’t. And if that displeases you, go elsewhere.
This is pretty much the way I view hyperlinks in comments. My reaction changes from time to time, and I may not apply my rules fairly or consistently. but that’s my choice and right. If you want to vote on how I run this place, do it with your mouse. There are plenty of other blawgs on the internet. Feel free to go elsewhere.
Timing is so important. When the American Bar Association, in conjunction with the National Legal Aid & Defender Association (NLADA), decided to hold the Equal Justice Conference at the Pointe Hilton Tapatio Cliffs Resort in Phoenix next week, no one could have guessed that it would follow on the heels of one of the most xenophobic pieces of legislation ever crafted, ABA President Carolyn Lamm wrote :
This law encourages second-class treatment of individuals based on the color of their skin, and that is unacceptable. The American Bar Association has long opposed these kinds of initiatives because they intrude on personal civil rights and because they belie our nation’s principle of justice for all. When justice for anyone in America is threatened, it diminishes us all as a free people.
For the ABA, an association largely dedicated to upsetting no one, this is quite a strong statement. Clearly, the ABA has taken the position that Arizona SB1070 is “unacceptable”. Some might think this is a reason not to bring its members, and their cash, to Arizona. But it takes a lot of planning to put a conference together. And there are non-refundable plane tickets, and hotel reservations, and, well, many impediments to change. As long as any dark or ethnic appearing attendees bring their proof of citizenship, they should be fine.
For nearly 100 years we have been utilizing our collective passion, expertise and voices under the umbrella of NLADA to promote equal justice. While we call it “equal justice,” at bottom NLADA’s mission is about ensuring that all people are treated with fairness and respect; it is about protecting human dignity; it’s about people. Thus, while recognizing that the decision to participate is an individual one, given the reality of the law we do not believe that we should play an institutional role in potentially placing our members in the position of suffering the indignity and abuse of rights and freedoms that laws like this promulgate. Accordingly, after much debate we have taken the position that NLADA will withdraw from the Equal Justice Conference. Our decision is grounded in our mission, vision and values.
The ABA, however, chose to stay the course. It would be a shame if they blew off Equal Justice just because it was being held in a state that had just legislated its denial.
Rarely do we get a really good video of the execution of a search warrant. This one, courtesy of Radley Balko , is destined to be a classic.
The police found only misdemeanor weight marijuana, but they saved a seven year old child from the perils of pot-smoking parents. Anybody want to bet whether the child now wants to grow up to be a police officer? How cool are those uniforms?
Radley provides the perspective of those who might take issue with the execution of the warrant. I surmise that this will be used for training purposes for a long time to come, as it reflects an absolutely perfect warrant execution as far as the police are concerned. In the war on drugs, it doesn’t get any better than this.
The New York County Lawyers Association has issued an ethics opinion in response to this nagging question:
Can a lawyer ethically remain behind the scenes a litigation and prepare pleadings and other submissions for a pro se litigant without disclosing the lawyer’s participation to the court and adverse counsel?
For those not in the know, this is the unbundling question. In other words, if a client wants to hire a lawyer to do some of the legal work but not all, can the client pretend to be pro se while using a lawyer to do piece work without telling anyone. This allows the client to only pay for the legal services the client wants without paying for more. If a client either lacks the funds, or just doesn’t think he needs more legal services than bits and pieces, it allows the client to pick and choose, and only pay for what he gets.
On the lawyer side, it allows the lawyer to make a fee from a client he would otherwise lose. It allows the lawyer to conceal his involvement and thus avoid responsibility for his work, particularly if it sucks. It absolves the lawyer from responsibility for failed legal work when the client pays the lawyer for a piece, but the lawyers knows, or would know if he did his job, that the client’s got it all wrong and is absolutely nuts.
Happy ending, right?
Unless of course, one expects a lawyer to be a lawyer rather than a piece worker, or one thinks that the lawyer’s ability to make a quick buck is secondary to his responsibility to serve the larger interests of the person paying him.
Okay, so I’m not the biggest fan of unbundled services. The NYCLA opinion rests entirely on the virtues of unbundled services in making legal services more affordable. That it also happens to be good for lawyers who don’t have enough work is besides the point. The opinion concludes:
We believe that client interests are best served by allowing limited scope representation when the client requests it. Based on the newly adopted Rules of Professional Conduct York, we find that notice of limited representation need not be given in every circumstance.
While the opinion conceded (very nice of them, by the way) that disclosure must be made when ordered by a court (imagine, complying with a court order requires an opinion), what possible explanation is there for concealing the identify of a lawyer who worked on a putative pro se case? While unbundled services are permissible, even if not in my opinion advisable, there is simply no rationale to justify concealing it. And make no mistake about it, failing to alert the court and adversary that there’s a lawyer working in the background in concealment.
Why would NYCLA arrive at this conclusion? It smells like the way to get more business for lawyers, the bits that they can get paid for which would otherwise be lost to the pro se litigant, while covering the lawyer’s butt and absolving them of responsibility for their work. In other words, this is a cash for lawyers deal under the guise of good for clients.
Should lawyers “ghost write” for pro se litigants, why not include the legend “prepared with the assistance of Joe Smith, an attorney duly admitted to practice law in the State of New York?” It’s true. It’s accurate. It holds Smitty, the lawyer who got paid, responsible for his work.
And when Smitty’s client screws it all up and comes back to blame Smitty for his failure to advise his pro se client that he didn’t have a clue what he was doing or what services he needed, maybe Smitty will think twice before cashing that check for $37,52.
No, the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don’t know better. That’s why they let us practice law. So do you really want to be a ghost lawyer?
Free speech comes at a high price. An email by a Harvard 3L has raised firestorms across the blogosphere, implicating racism, the ability to question sacred beliefs and where the lines are drawn. But this post isn’t about the email, which can be found pretty much everywhere else and won’t even be linked here. Rather, this post is about the attack after the attack, the insanity that follows.
Eugene Volokh has discussed, with some sensitivity and sensibility regardless of where one stands on the subject, the email in question. Does the expression of the openness to discuss a sensitive racial subject render one inherently racist? Elie Mystal thinks that white people don’t get it. He may be right for all I know. I think we’re all racist to some greater or lesser extent, and none of us are nearly as good at understanding what it’s like to be another race as we think we are.
Then comes SUNY Buffalo mathematician Jonathan David Farley , Ph.D. (with some major credentials besides) , who posts at HuffPo that the email was racist, plain and simple, and goes further in noting that “free-thinking” blacks aren’t helping matters.
Should the Harvard law student be expelled for her stupid, offensive, and easily refuted views? Certainly. But more harmful than the email is the contemporary African-American community’s customary cowardice―the Harvard Black Law Students Association “has not taken an official stance” on the email that implies blacks are Untermenschen*―and its propensity to elevate monsters and call them heroes. That’s simply “precious.”
He’s got a point. Whether he’s right, I couldn’t say, but it’s certainly something worth considering. The comments to Farley’s post, however, are where things devolve quickly, as naturally people challenge or support the position taken in the post. At one point, some knave raises Eugene’s post comparing his experience as a child on a bus in Kiev, and asks if Farley really calls for the 3L’s expulsion from Harvard. Oh boy.
Yes, I am calling for her expulsion. And people like this “Volokh” should never, ever have been allowed into the United States to spew their race hate against Americans (masquerading, the way the white South Africans sometimes did it, as anti-Communism).
Say what? This “Volokh”? Spewing race hate against Americans? I mean, sure, Eugene’s not the snappiest dresser and all, but I always thought that was his real name.
Professor Volokh is a principled man who believes in academic freedom and most certainly not racist. He did nothing to deserve your vicious ad hominem attacks and misrepresentations (he stated that he was against certain politically correct taboos, and no more) save advocate a different response, and certainly nothing excuses your attack on him.
Feel free to criticize him views. Don’t launch ad hominem attacks.
I suspect you wrote the reply quickly after dealing with right wing nutters and didn’t think about Volokh’s argument before you replied to what you thought was another ill-informed troll. Just think about what he has to say, OK?
I responded to Volokh’s views. His view is racist. If it were in my power, I would limit the number of additional racists coming into the United States to attack Americans. Volokh owes African-Americans an apology.
I used to believe that the Volokh Conspiracy, by far the most prominent legal blog around, mattered. Now, my ‘sphere view is shattered. Not only is it worthless in the scheme of blogospheric influence, but I don’t even know if Eugene’s last name is really Volokh. I mean, who would make up a name like that, but still, it’s now in issue.
So, Comrade, is your name really “Volokh”? And dear Dr. Farley, you’re proof that even mathematicians with interesting geo-political racial points to make can be functionally insane. Have you considered a moving from Buffalo to Arizona? The weather is much better. Much.
There will be no Miranda issue should there come a time when Times Square Almost-Bomber Faisal Shahzad goes to trial. He talked pre-Miranda, and he talked post. He was a talker, as the agents around him did the Happy Dance and issued press releases about what a great job they did.
Yet the knee-jerk outrage was at the ready, just as it was when the Underpants Bomber was Mirandized, if Shahzad had shut his trap upon being given the warnings.
“Obviously that would be a serious mistake … at least until we find out as much information we have,” McCain said during an appearance on “Imus in the Morning” when asked whether the suspect, 30-year-old Faisal Shahzad, a naturalized American citizen from Pakistan, should be given his constitutional rights.
“Don’t give this guy his Miranda rights until we find out what it’s all about,” McCain added.
A host of other politicians supported this position, with equally compelling reasoning, primarily along the lines that only Eagle Scouts deserve constitutional rights. As it happens, Shahzad rendered the argument moot when he was given the warnings and continued to tell the government everything he knew. Happy Dance. News reports say that he’s still talking even as I write, which should come as no surprise given that he was a marketer. Maybe he’s just trying to network and be genuine. Maybe he’s laying the groundwork for the Shahzad brand. No matter. He keeps talking and they keep listening.
Aside: Apparently, when they pulled Shahzad off the Emirates plane after having nearly blown the no-fly protocol, Shahzad pointed out two other passengers on board who were also pulled but then released, demonstrating what a rich source of information he would be.
Over at Volokh Conspiracy , Orin Kerr uses this as an opportunity to review the law of Miranda, a worthy review for lawyers and layfolks alike, and a perfect exercise in slippery slope jurisprudence. Whether Orin agrees with the state of law, I dunno, though he offered nothing to suggest that he disagrees.
[T]he FBI’s strategy was a smart one if you recognize the detailed maze of Miranda doctrine. It’s a reasonably safe bet that a court would allow an initial pre–Miranda inquiry to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984). Then, after Shahzad made clear that he’s a talker, the FBI could insert the Miranda warnings and get the waiver and then get Shahzad to repeat what he just said pre-waiver. Because the two-stage interview was not an intentional two-step interrogation technique designed to violate Miranda, a court would allow the post–Miranda statement under Justice Kennedy’s controlling opinion in Missouri v. Seibert, 542 U.S. 600 (2004). So from a legal standpoint, this was pretty cleverly done.
Assuming that you already know the Miranda basics, that it only kicks in on custodial interrogations (which is itself rife with issues, but not for today), the Supremes slid down the exception slope with Quarles, crafting a “public safety” exception:
We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.
Notice how the court denigrates those who would be slaves to the “police manual?” Notice how “spontaneity” is “necessarily the order of the day?” Notice how cops’ conduct “should not be made to depend on post hoc findings at a suppression hearing?” This is the court’s way of saying, “we’re not gonna let all those stupid constitutional thingies get in the way when there’s he-man police work to be done.” A step down the slippery slope.
[Tannebaum notes that in Quarles, there’s a missing gun at issue, whereas here, the bomb was already in hand, as if the missing gun in Quarles somehow makes the non-Mirandized interrogation different. But when considered in light of Orin’s comparison to potential overseas conspirators who “who would presumably have other attacks planned or might in the future,” obviously an over-riding immediate public safety concern that would only last for a few decades and cover millions of people under any circumstances, Tannebaum doesn’t look nearly as silly. Public safety, obviously, is in the eye of the beholder. ‘Nuff said about that.]
Then there’s Seibert, where the court held that the Missouri two-step was wrong, but as long as police didn’t intend to scam the defendant out of his rights (as in, that subjective motivation that was wrong, wrong, wrong to consider in Quarles is now the saving grace for the police), it was cool with them. Slip-sliding away.
Orin then points out an important point, that there’s no duty to provide Miranda warnings per se, but rather the failure to do so in the absence of Quarles would render the defendant’s answers inadmissible.
Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement that would be inadmissible in court. Chavez holds that a person’s constitutional rights are violated only if the prosecution tries to have the statement admitted in court.
This would be a sensible decision, allowing the cops to perform that public safety function while simultaneously safeguarding the defendant’s constitutional right against self-incrimination, if it ended there. But of course, it doesn’t.
Indeed, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement is excluded. See United States v. Patane, 542 U.S. 630 (2004). So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful.
Weird indeed, until one enjoys the sophistry of Justice Thomas’ rationale.
It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation. Chavez, supra, at 790.
Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun, 371 U. S., at 488.
Got that? The remedy is suppression of statements, and physical evidence derived from statements isn’t statements, so therefore it isn’t suppressible. Duh. Wong Sun is for kids.
Just to bring this back to the starting point, Orin concludes:
As a result, the FBI would have acted entirely lawfully in making a choice on the ground as to whether to read Shahzad his Miranda rights. The choice would have been between the odds of getting a statement that they could not use in court without the warnings versus the odds of getting a statement that they could use in court with the warnings. Shahzad turned out to be a talker, so the FBI gave him the warnings, got his waiver, and then continued to get more statements from him — all of which will be admissible in federal court.
While it’s not entirely clear, I think Orin is saying that no matter what the FBI did, chances were good that they get the statements in regardless of what they did, but the purely fortuitous fact that Shahzad won’t shut up makes the FBI’s choice a brilliant exercise of law enforcement discretion.
Of course, given the fact that Shahzad was a marketer, all they needed to do was give him a blog and he would have spilled his guts no matter what.
While I’m not particularly fond of symbolism for its own sake, the announcement that the Supreme Court of the United States will no longer permit people to enter through its front doors came as shock. Ashby Jones at the WSJ Law Blog writes:
Some sad news to report on the Supreme Court front: At least for the indefinite future, no longer will the public be allowed to enter the Supreme Court building through the front doors. No, for security reasons, all visitors will now be shepherded through two side doors on the ground level.
Ashby’s primarily concerned with the loss of the inspirational aspect of this change.
It’s too bad: entering the Supreme Court through those doors is inspiring and cool experience — probably best done just after graduating from law school, when you’re still bright-eyed and bushy-tailed and rarin’ to try your hand at real-life legal practice.
Certainly, the loss of a significant purpose to the creation of a structure representing the “majesty of the law,” the physical manifestation of the ideals upon which our system is founded, is disturbing. So too is the symbolism that redress of grievances in America comes in through the side door.
Yet this goes beyond mere symbolism. The closure of the front door as an entrance into a branch of government reflects two more substantive, and far more disturbing, things than the loss of coolness and inspiration. First, it says that we concede that the United States of America is incapable of defending a single door from breach or attack. Second, it says that the fear of this inability is of paramount importance. To put it another way, safety first.
There is no denying, as targets of political disagreement go, that the Supreme Court is a big one. While fear of terrorism falls far distant to fear of bad drivers as far as harm to others go, it would be a failure of massive symbolic importance should someone manage to get inside the sanctum sanctorum with a bomb under their coat. Are we not capable of discerning such a threat through the front door? Perhaps not, but if that’s the case, then for all the cost and inconvenience that safety imposes on us, why are we bothering? If we can’t protect the Supreme Court from attack, let’s send the tin soldiers packing and make our lives enormously more convenient by trashing the whole scheme.
The second concern, however, goes far deeper into the troubled core of our society. Justice Stephen Breyer, with Ruth Bader Ginsburg concurring, issued a “dissent” from the decision to close the front door entry.
To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world—including those, such as Israel’s, that face security concerns equal to or greater than ours—has closed its main entrance to the public. And the main entrances to numerous other prominent public buildings in America remain open. I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.
The tension between law and order, safety and freedom, is at the core of essentially every criminal law case that has and will come before the Court. It has now spoken for itself, that safety comes before freedom. That order is more important than law. This is the ultimate capitulation to fear.
The ABA Journal reports that hundreds of law firms have been taken in by email scams, such as the Chinese collections scam that’s made the rounds over the past few years.
Since 2007, the FBI has received hundreds of complaints from law firms claiming millions of dollars in losses in e-mail scams, according to Jason Boone, a research assistant at the nonprofit National White Collar Crime Center who spoke to the publication.
Two initial thoughts come to mind, that legal Darwinism is at play, destroying law firms and lawyers who probably should find a different line of work if they aren’t savvy enough to spot an obvious scam. The second notion is that these firms are desperate, willing to stumble blind into the cesspool of the internet in the hope of business.
A step back, however, and it’s similarly clear that lawyers have been bombarded with come-ons of online magic, with the complicity of such venerable sounding institutions as the ABAJournal itself, suggesting that the rest of the legal world is not merely surviving, but making money hand over fist by their early adapting, their online presence, their embrace of Web 2.0, The scam is just as much within as without, and it pushes the unwary to put on blinders, to believe in fairies and, despite misgivings, accept the word of the Social Media Gurus that technology will save them.
Yet, when someone tries to provide the counterpoint to the cheerleading, the siren’s call of the internet, they are attacked for telling the truth. Brian Tannebaum posted I Found You On The Internet, a drop of reality against a sea of deception, there was no applause. The comments received demonstrate that the message is lost. At best, it’s about minor tweaks to the internet marketing that will bring success, The pot of gold is always just around the corner.
For the most part, the lie is perpetuated by the Social Media Gurus and the Slackoisie, the former because their income is derived from the wealth of lawyers foolish enough to believe that the internet is their path to success. The latter because any other path would require real effort on their part, and that would interfere with their work/life balance and require them to trade their flip-flops for real shoes.
But as the ABA Journal report shows, there’s another group that has quietly been subsumed in the scam world of the internet, so utterly lacking in digital understanding that they are ripe for the picking by any scammer around, whether it’s the Chinese collections scam, the Nigerian lottery scam or the Social Media Guru scam.
A handful of lawyers have tried their best to buck the tide. They are unpopular with the scammers for calling them out, explaining that there is no magic bullet, and pressing the issue of hard work and competence over an online marketing presence based on lies and low rent pseudo-lawyering. The hundreds of law firms taken in by the collections scam are only the tip of the iceberg.
When Mark Herrmann at Drug & Device Law wrote that blawging didn’t bring in business, at least not the kind of business that anyone wanted, he was excoriated. How dare he challenge the budding Social Media business. Things have only gotten worse since, with every failed lawyer with a computer offering advice for a fee to law firms hungry for business.
Mark Bennett, who, like Tannebaum, has been one of the clear voices trying to save lawyers from themselves, made some changes to his contact page on his website reflecting online reality.
Please don’t call for a “price quote.” We don’t give price quotes over the phone. But how much do we charge? Probably more than anyone who quotes prices over the phone.
We represent people in serious trouble who are ready to take their trouble seriously. If a low-bid lawyer is good enough for you, please look elsewhere. Our clients deserve for us not to have to waste our valuable time with window-shoppers and lookie-loos.
For all the newcomers to blawgosphere, to twitter, to whatever social media flavor of the day is being tossed in your face as the greatest miracle ever, consider this. Bennett and Tannebaum have not merely been engaged in these media for a while, but have been wildly successful in gaining respect, readership, interest and recognition. They are the elite, what you aspire to be. And if they are telling you that their blawgs aren’t bringing in a tidal wave of great clients and new business, what makes you think that it’s going to be completely different for you?
Neither Tannebaum nor Bennett need to help you. Neither needs to endure the social media scammers and ignorance of the Slackoisie. They do it for your benefit, so you aren’t amongst the next group of hundreds of law firms taken in by online scams. How about a little appreciation? And for all those who have yet to achieve an iota of the success they have, whether in the blawgosphere or the courtroom, what makes you think you know better than they do?
Bennett and Tannebaum are real lawyers trying to help other real lawyers. It’s time for a little appreciation, because there aren’t many who will endure the crap they have to put up with to help you. Pay attention to what they are saying. They know what they’re talking about.
