Cattle are branded.  Lawyers are not.  So says Kevin O’Keefe and Doc Searls, who fired the first salvo.

As for personal branding, I still think it’s an oxymoron. Branding is a corporate practice, not a personal one. Build a reputation by doing good work. Put that work where others can judge its value. Contribute to the success of others, and credit others generously for their contributions to your success. Never promote for its own sake. I think it’s a mistake to categorize these practices as forms of ‘branding,’ because they are expressions of humanity and integrity.

Branding is a word used by every marketer on the internet.  Pounded over and over in the hearts and minds of the clueless, we must “brand” ourselves.  Putting aside that it’s marketing jargon designed to make it clear to lawyers that we have no future unless we incorporate the language of marketing into our lives and practices, the meaning is that we must define ourselves or we’re nothing.  Worse still, if we don’t define ourselves someone else will.  You don’t want that, as someone might define you as stupid, incompetent or uncaring (the worst thing any lawyer can be on the internet).

But my newest heroes say “nay”, forget branding.  Kevin offers a short list applicable to human beings.

Rather than talking of personal branding, I’d actually be more comfortable categorizing the below practices for lawyers as expressions of humanity and integrity, as opposed to forms of ‘branding.’

• Build a reputation by doing good work.
• Put that work where others can judge its value.
• Contribute to the success of others, and credit others generously for their contributions to your success.
• Never promote for its own sake.

Heresy, and the comments to Kevin’s post show it.  Sam Glover from the Lawyerist  writes:

I don’t disagree with Doc’s post, but I think it is a matter of semantics. You can call it reputation or you can call it personal branding; the result is the same.

Marketer Nancy Myrland  says:

Kevin, call it what you’d like, and maybe not branding as it is a misunderstood and often maligned term, but we all do have a brand whether we like it or not. We can choose to let it be formed for us by those who observe us, and choose to define it as they wish, or we can take an active part in its formation and communication. I choose a combination of the two, hopefully led by the latter.

The assumption that this is a shallow practice is not constructive, and will only serve to confuse lawyers and other service providers whose clients are looking for a reason to choose them.

I’m not saying I’m blatant about using the words that I have chosen to define my brand, but it is my responsibility, and my practice, to use them, to model them, to act like them, and to communicate them when it is appropriate.

Karen Cariello chimes in:

At its most basic level, branding is a shorthand for the promise of value that the product intends to deliver. Thinking in these terms it’s easier to wrap your head around its application to a professional service provider. As Nancy eloquently said above it’s important to be proactive in defining what your promising to deliver to the community – what does one’s name mean? After all, isn’t the first step to Google someone before we hire them?

Is it a semantic difference? Are lawyers remiss in not being proactive in defining their brand?  Heather Morse-Milligan  comes clean:

Lawyers come to marketers daily with the request to “differentiate” them from their competition. Usually this is impossible because their competition also graduated top of their class from a similarly ranked university, top of their class from an Ivy League law school, and are AV-rated, Best and Super-duperist with their competition who practice law across the hall, down the street or on the other side of the country.

Having a personal brand is what differentiates you from your competition. Your personal brand is what you stand for. It’s based on your reputation. It’s what you’re known for in the marketplace. It’s what differentiates you from your competition. It’s what comes to mind when someone says your name.

The battle lines have never been laid out more clearly, all the meaningless rhetoric aside. 

Branding is what you want to call yourself.  Reputation is what other people call you.  You give yourself a brand.  You earn a reputation.

If your name is associated with the words, aggressive yet caring criminal defense lawyer, every time it appears online, does that make it so?  According to the marketers, you are whatever Google says you are.  Of course, that doesn’t mean that anyone else in the world agrees with your characterization of yourself.  But seriously, what matters more, being the person you want to be or appearing that way on Google?

Of all the marketer’s protestations, Heather’s offers the clearest and most comprehensible, both in its frankness and its illogic.  It’s the world of lawyers through the marketer’s eyes.  As Heather says, it’s what marketers do to fulfill the lawyer’s desire to “differentiate” himself when the sad reality is that he’s got nothing to distinguish himself.  He’s like everyone else, so he fabricates a brand.

But Heather goes on to write:

Your personal brand is what you stand for. It’s based on your reputation. It’s what you’re known for in the marketplace. It’s what differentiates you from your competition. It’s what comes to mind when someone says your name.

This, of course, is the big lie.  If this was the lawyer’s reputation, then he would have no need of marketers to manufacture it for him.  Indeed, if the lawyer had a reputation in the marketplace, he would have no need for marketers.  Rather than being “based on reputation,” it’s the creation of what one wishes was his reputation.  It is, in short, the pretense of reputation in the absence of any.

Marketers must vehemently disagree with this, as nobody would buy their services if they tried to sell branding as “scam your way to success by fabricating a reputation that you’ve never earned.”  That would make it sound dishonest, and some potential marketing customers might feel badly about signing up for something so underhanded.

But marketers can’t actually do much if they aren’t allowed to create a reputation, a brand, out of whole cloth.  It’s not like they can make you a better lawyer, help you to win cases, to research better, write better, argue better, become credible to judges and juries alike.  That takes work.  And time.  And the lawyer who wants to market wants results now.  They certainly don’t go to marketers to be told that a reputation takes years of effort to achieve.  Well, a bad reputation can be achieved pretty quickly, but that’s another story.

Kevin gets it.

Can you imagine someone telling Clarence Darrow, labeled a ‘sophisticated country lawyer,’ that he needed a personal brand to survive? I cannot.

When someone’s reputation is unfairly sullied, they’ll ask ‘Where do I go to get my reputation back?’ They don’t ask where do I go to get my brand back?

Legal marketers have struggled against lawyers’ animosity toward them and their hard work of marketing a law firm. Maybe it’s because they hear terms like brand and don’t want a brand or to be marketed? Maybe those lawyers want to know how to be a better lawyer, how to serve more people, and how to let more people about their skill and passion without selling themselves? I don’t know.

Yes you do, Kevin.  You can buy a brand, but you can’t buy a reputation. 

For all the lawyers who, in their effort to “differentiate” themselves overnight by paying a marketer to attribute qualities to them that they do not deserve, bear in mind that there are only so many words available to frame the lie.  Your marketer may call you “aggressive yet caring,” but he’s going to write the same things about the next lawyer who pays him, as will every other marketer.  Your “brand” won’t distinguish you any more than it will distinguish every other lawyer who wants to buy an overnight reputation.  Plus, you will know that you don’t deserve it, haven’t earned it and are living a lie.

It doesn’t matter if you think you’re the Super-de-dupest lawyer around.  It only matters if that’s what your clients, your judges, your potential clients think.  No brand is going to make you any better than you are, or give you a reputation you don’t deserve.

Lawyers get reputations the old fashioned way; we earn them.  The only thing personal branding will do is earn you the reputation for being a shameless marketer.  It’s a hard reputation to shake.

To any criminal defense lawyer who practiced in federal courts since the 1980s, the slide down the slippery slope was one of two things.  The end of the decent, honest, hard-working criminal, or a short term opportunity to cash in.  That’s when everything changed, from guys who lived their lives on the street, engaged in profit-making endeavors that the government frowned upon, coming home at night to their wives, children and the American dream, to snitches.

The fault lies mainly with the United States Sentencing Guidelines, so harsh and inflexible that any honest drug dealer caught in its clutches felt there was no way out.  Where before they would never consider ratting out their brother, it was rat first or be ratted on.  Only one would get the 5K1 letter, and there was no glory in spending the next 20 years in prison.  Snitch was the new growth industry on the streets of the city. 

A large segment of the criminal defense bar dug secret underground tunnels leading directly to 1 St. Andrews Plaza, so they could get their quickly and sight unseen.  The only thing you needed to know to become a New York rat lawyer was how to smile and say sweet things to federal assistants.  And the AUSA thought they were brilliant, what with people pushing and shoving to be the first through the door.

Since people were falling all over themselves to rat anyway, a cottage industry grew of people who cut out the middle man and went straight from the cradle to the DEA payroll.  We went from agricultural nation to manufacturing nation to snitch nation, which has the lowest cost of doing business and no barriers to entry at all.  America is the land of opportunity.

Sound crazy?  Consider this:  On the first page of the instruction sheet for Form 1099-Misc ., the Internal Revenue Service includes this very important bit of information.

Fees Paid to Informers. A payment made to an informer as an award, fee, or reward for information about criminal activity is not required to be reported if the payment is made by a federal, state or local government agency, or by a non-profit organization exempt from tax under 501(c)(3) that makes the payment to further the charitable purpose of lessening the burdens of government.

You don’t make the first page unless it’s an instruction that matters to a whole lot of taxpayers. For example, the instruction for “gross proceeds paid to attorneys” is on page two.  That’s where the small potatoes stuff is put.  Page One is for the big time instructions.

To all those kids considering law school, which carries both enormous tuition costs as well as significant opportunity costs, the IRS is trying to tell you something.  And it’s tax free income.  It doesn’t get better than that.  Plus, you get to hang out in bars.

H/T Jamie Spencer at Austin Criminal Defense Lawyer

The jury found that the plaintiff was thrown off the roof of a building in Brooklyn?  Fuggehdaboutit.  Via John Hochfelder, the Appellate Division, Second Department, holds that the jury that found for the plaintiff, Pedro Acosta (whose name isn’t really Pedro Acosta, as if that’s a big deal in Brooklyn) and awarded him $1 million for his damages was, well, nuts. 

The trial judge, James G. Starkey, denied the City’s post trial motion for dismissal, stating that while he would have found against Acosta had he been the trier of fact, the divergent versions were for the jury to decide, and the jury had spoken. 

But police throwing a guy named Acosta (kinda) off a building in Brooklyn? That wouldn’t happen, says the appeals court.  The brief decision  states:

Contrary to the plaintiff’s contention, viewing the facts in the light most favorable to him, there was no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. In sum, the plaintiffs version of the events was “manifestly untrue, physically impossible, or contrary to common experience, and such testimony should be disregarded as being without evidentiary value” (Cruz v New York City Tr. Auth., 31 AD3d 688,690, affd 8 NY3d 825). We note that the record is replete with instances where the testimony and other evidence adduced by the plaintiff was manifestly untrue and tailored to avoid the consequences of previous statements made by him to disinterested nonparty witnesses. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law.

 

In other words, no way, no how, could that jury have possibly been right.  Even viewing the facts most favorably toward Acosta, the jury was still totally out of their minds, flip-city, kooby-shooby.

Given the dearth of information in the appellate decision, it’s impossible to tell whether the court’s reversal was based upon actual fact, undisputed and irreconcilable as a matter of law with the jury’s finding in Acosta’s (kinda) favor, or whether the court simply refused to accept the premise that some cops threw Acosta (kinda) off a building.

Regardless, this case reflects something fascinating either way.  A jury in Brooklyn, despite evidence that may have been a little less than overwhelming, was inclined to find against the New York City police and in favor of a guy who changed names like other people change clothing, on a claim that the cops threw him off the roof.  These are the very people who live, who work, in Brooklyn.  They breath Brooklyn air.  They smell Brooklyn scents (odors?).  They are Brooklyn.  And they are ready, if not chomping at the bit, to find that cops throw people off roofs in Brooklyn.

What does the jury know that the Appellate Division doesn’t?

What does the Appellate Division know that the jury doesn’t?

Could they be any farther apart?

For a court to hold that no reasonable jury, as a matter of law, could find in favor of a party is as strong a statement that the jury was just totally out of their minds as possible.  It’s almost as if this was a Bronx jury, because everybody knows that people calling themselves Acosta get thrown off rooftops in the Bronx all the time (just watch Fort Apache, The Bronx, if you have any questions).  But that’s an entirely different situation, as the buildings are taller and the Acosta’s aren’t around to testify.

Ashby over at the Wall Street Journal Law Blog  had some fun yesterday with one of my posts .  Not because he liked my post, but because Venkat Balasubramani (referred to in the post as some reader named Venkat) commented  about lawyer stress.  The WSJ loves posts that somehow relate to stress (and include the word “Slackoisie”, as I occasionally do).

This generated a reply  from Dan Hull, which ended with this sentence:

When we went to law school, I thought we all signed up for stress. Didn’t we?

Buried in the comments to Ashby’s post is this observation:

• 8:00 pm April 15, 2010
• Anonymous wrote:

Dan Hull is a blowhard.

Now Dan is many things, erudite, worldly, experienced, funny, bold.  But blowhard is not one of them.  Put aside, for the purpose of this post, that the individual teletubbie who posted the comment went anonymous, willing to post ill of Dan Hull provided he could hide.  This per se disqualifies the comment from being of any consequence, but since this isn’t about the relative worth of the comment, we need not concern ourselves with the next Ned Beatty.

The point is that you can’t please everyone.  Dan Hull shows no fear of having an opinion and stating it.  That being so, he will have people who think he’s wrong.  More than wrong, who hate him for having the opinion and stating it.  That’s the territory.

Norm Pattis  has been writing online for a long time, and he’s never held back.  He’s made some serious enemies along the way, and if you have any doubt about it, check out his TLC posts and the anger generated by his disloyalty to the tribe and its chieftain.  And then along comes Mirriam Seddiq  who writes about discovering Norm:

Where have I been???  How have I missed this jewel of a blog?  More importantly, how do I become like him?  Where do I develop the skill and the cajones to go out and do it every day?

It doesn’t get any sweeter than that.  Of course, in a comment to Jamison Koehler’s post, disagreeing with mine, a commenter  wrote:

Why are you picking fights with the mighty Scott Greenfield? Have you not ever felt his wrath?

What a strange thing to say.  Not the wrath part, as I’m well aware of my violation of the blawgospheric rule of blowing kisses at every teacup member of the Slackoisie, but the part about “the mighty.”  How weird.  But then I realized that the reason Anonymous called Hull a blowhard was the same.  He was “the mighty.”  Norm Pattis is “the mighty.”  While I doubt that I deserve to be in their company, maybe even I’m the mighty to some out there.  But while the commenter’s use was intended to be snarky, his point is worth a second thought.

No one puts a gun to anyone’s head and says, read a blawg or die.  This is voluntary, in the extreme.  Read or don’t, it’s entirely up to you.  And if you read, care or don’t, it’s entirely up to you.  And if you care, agree or don’t, it’s entirely up to you.  When a blawger hits the “publish” button, he never know if what he writes will be read by one person or a million.  It’s entirely outside of his control.  As anyone who is disappointed in the number of readers they have at their blawg will tell you, just because you write it doesn’t mean that they will come.  This isn’t a field of dreams.

To the extent that any of us, Dan, Norm or I, are “mighty”, it’s because others made us so.  For whatever reason, other people have ascribed credibility to our writings, our thoughts, our positions.  Without that, we would be the tree falling in the forest with no one to hear.  Who cares whether the tree makes a sound?

It could be that people read things for the same reasons Alan Alda attributed to watching the cockroach races in M*A*S*H; for the crash.  But rubber necking doesn’t build a very sustainable readership, and the moment will be over quickly.  For Dan and Norm, the value of what they have to say has built over time, constantly growing and generating thought, discussion and, in many instances, change.  The reason is that their ideas have merit, and that the majority of their readers appreciate what they write and agree with them.

There will always be some who hate them for what they write, or feel compelled to attack from behind the bushes.  You can’t please everybody.

When someone tells me they hate a post, I shrug.  What am I supposed to do, change my mind to please you?  All I can do is write what I think, and you can agree or disagree, read or not.  If it makes you feel better to call me a blowhard, so be it.  But if you snarkily refer to me as mighty, then consider why that’s so.  No one, but no one, has to listen to a word I say.  No one.

You might also want to consider who listens to you, and why.  Now stop your crying, teacup, and pay attention to what Dan and Norm have to say.

He’s got the most dazzling smile of any lawyer in America.  You can’t blame him for that, or for the fact that Mickey Sherman has been able to parlay that smile into a magnificent career as a celebrity criminal defense lawyer.  Many wish that they had Mickey’s smile, or his charm and wit.  They wish that they could spend their evenings hanging around the green room at the Larry King show. 

There are only two sure-fire ways to become a celebrity lawyer.  Look particularly good on television (and be perpetually available), or ingratiate yourself with the producer.  It doesn’t matter what you say, since no one knows whether you make sense or not, and you are never put to the test of competency.  Indeed, rarely do you get to utter anything even remotely sensible, given the inane questions and brief time for response.  It only matter that there is a head, with lips moving, that doesn’t repulse the audience.

But the love shown to a dazzling smile by television wasn’t necessarily shared  by judges, and in its decision in Michael Skakel against the State, the Connecticut Supreme Court was not kind to Mickey.  The question has long been  whether Mickey did right by Skakel. 

The list of things left undone by the defense is remarkable, not necessarily because it’s the first time stones were left unturned but because Mickey had everything, and I mean everything, going for him.  He had more money than he knew what to do with to pay for every bell and whistle available.  He had the wherewithal to put together the finest legal team since OJ to do the unpleasant heavy lifting, if he didn’t want to get his smile all dirty.  He had the eyes of the world watching his every move, since the trial of a Kennedy cousin for the death of young Martha Moxley was the trial of the decade (du jour).  It’s not possible that Mickey didn’t realize that any screw up, any laziness, any failure to turn over the stone wouldn’t be noticed.

Unless he won.  If the verdict was not guilty, Mickey would get his own TV show.  Network.  Primetime.  Not guilty, and he would be untouchable.  He could have a band and a sidekick.  Dancing women in skimpy costumes.  And that dazzling smile.

But the verdict was guilty.  And now, the case will be sent back for hearings on the habeas, and every move by the defense will be picked apart by lawyers who lack Mickey’s dazzle but will likely be extremely fastidious in their attention to details of ineffective assistance of counsel.

I wish I had Mickey’s smile, charm and wit.  Instead, I’m constrained to turn over stones while waiting for the call from Larry King.

Via South Carolina’s Bobby Frederick , the bad apples keep falling off the tree.  This time, Streamwood (which apparently is somewhere around Chicago) cop James Mandarino  wails on motorist Ronald Bell, who appears to be fully compliant, non-threatening and cooperative.  Not even a furtive gesture.

James Mandarino, 41, beat the motorist 15 times as the man knelt on the ground March 28, according to Assistant Cook County State’s Atty. Alexander Vroustouris. The man received seven stitches to his ear and was treated for a concussion and multiple contusions, abrasions and bruises, Vroustouris said.

“At no time during the time period when the defendant is beating the victim with his baton does the video reflect that the victim had anything in his hands, nor does the video reflect the victim making any threatening motions toward the defendant,” said Vroustouris. “The victim is completely compliant.”

As Bobby notes, the comments to the original article are interesting in how police Gestalt compels the faithful to believe that Bell, the compliant victim, must have done something to deserve the beating, or that Mandarino, the cop, is endowed with an inherent excuse (like the stress of the job) to excuse the beating.  One way or another, the victim is guilty and the cop is not.

Watch the video and decide for yourself:

Some of the more curious reactions involved the assumption that something must have happened beforehand, outside the camera’s eye, to justifiably enrage the officer, for his conduct is otherwise wholly inexplicable.  Others suggest that the Bell, the victim, must have “mouthed off” to the cop, and everybody knows that if you mouth off, you get beaten, not necessarily suggesting that it’s right but that it’s the way life works.

While the officer’s conduct on the video leaves little room for doubt that it was legally unjustified, it does raise a hard question.  If this officer was simply a psychotic animal, one might expect that he would have shown his true nature at some earlier point during his 15 years on the job.  Why did he crack this night?  The problem is that we can’t answer the question, but only engage in speculation that reveals our point of view.  Mine is that “protect and serve” is a very hard job, for which most people are not qualified, and that we don’t put a gun and shield in the hands of such people and tell them to go out on the street and use them.

I guess we just have to suffer these bad apples rolling in, one at a time, day by day, until people (and particularly judges) can’t ignore them.  I don’t know whether that day will ever come.

The winter was harsh around here, and the spring brings the need to repair the ravages of the season.  With a few slates off the roof, I called a roofer.  Despite my efforts to be fairly handy for a lawyer, I prefer to keep my feet on the ground, and would rather pay another person to work on high.  It took a few calls before finding anyone interested in doing a small job, but one fellow was happy and interested.

He came by the give me an estimate.  The time spent giving me the estimate would have been almost sufficient to do the repair, but instead he looked, we talked and then he got back to me with his price.  I was happy, and told him to do the work.  He was happy too, and would get back to me in a few days to let me know when the work would be done.  An awful lot of time and energy was involved in the preparations to do a fairly small job. But this was how he chose to proceed.

I like the guy.  Gave him the job, and am still waiting for it to be scheduled and completed.  It would have been far better, as far as I’m concerned, had he just performed the work while he was there, but that wasn’t the way he sold jobs. I didn’t need the selling, just the work.  He likely expected me to try to haggle with him on the estimate.  I didn’t. His price seemed fair to me, and I would rather expect excellent service than quibble over money.

Brian Tannebaum  asked the other day whether people who aren’t hungry go to restaurants.  It was an analogy to a new trend he’s experiencing with people who come to see him about retaining him to represent them. 

And rearing it’s ugly head recently (probably due to the economy):

“I’m not sure I even want to hire a lawyer for this. I think it may make me look (bad, guilty, like I’m trying to hide something.)”

Every lawyer who represents alleged criminals or anyone in trouble gets these questions. When I was starting out, I would entertain this notion to the point where it appeared I was almost begging the client to change his mind.

I suspect that the question isn’t about whether the person needs a lawyer, or is hungry to follow the analogy, but a come on to the lawyer to induce the client to retain him by offering a reduced fee.  It’s just a way to haggle a bit.  Brian doesn’t haggle.  Nor do I.  So why does the potential client?

A huge rift has developed in the legal profession between those desperately seeking business and those desperately seeking to provide clients with excellent representation.  The former compete on price.  The latter on quality.  The price competition is far easier for the client to appreciate and understand.  Quality can’t be seen or touched, and can’t be proven until after the fact, and then only by comparison.  For those clients who go to law offices expecting a roofer, it’s an unfulfilling experience.

Tannebaum often writes about the ugly truths of quality legal representation.  Few want to shoulder this burden, as it’s counterproductive to marketing.  It makes lawyers seem arrogant and unfeeling, as if we are too good, too important to be bothered with potential clients.  It’s not, but it feels that way when the culture of marketing revolves around selling legal services like other products and services. 

Marketers teach lawyers who turn to them because they need business ways to “sell” the client.  We offer free consultations, which clients interpret as a free hour of a lawyer’s time to provide free legal advice which they can then take away and use.  I get many inquiries from people asking if I give free consultations.  There’s only one reason for them to ask.  I don’t.  But they expect lawyers to do so, and will be happy to enjoy a free consultation when they need answers from a lawyer.  This is because we teach them to expect free consultations.

Clients call or write for a free answer to a legal question.  They’ve been taught to expect that too.  Think Avvo Answers.

When a question or consultation won’t suffice, they want to negotiate, or pay the fee over time, as they would on replacement windows.  Many lawyers will negotiate their fees, lest a potential client walk away. Others will take payments over time, praying that the second, then third payment will come. 

The questions that Brian writes about are rarely a problem for me anymore.  I vet potential clients before making an appointment with them.  It’s quite common for callers to tell me that they have a problem and would like an appointment.  I ask them what the problem is.  Most are refused an appointment.  There’s no reason to sit down with someone when there is no possibility of my taking their case, whether because the nature of the case isn’t suited to my practice or they aren’t able to pay the legal fee. 

Callers are shocked that they can’t have an appointment; they have been taught to believe they are entitled to one.

This dichotomy between lawyers and roofers is a serious problem.  We have only so many hours in the day, and when that time is used to meet with people who will never be clients, it is lost forever.  But as long as lawyers prefer to sell themselves like roofers, as their marketing experts tell them to do, customers of legal services will expect us to behave like roofers. 

Of the lawyers with whom I’ve spoken who put stock in marketing, they would much prefer to run their practice like Brian Tannebaum, but they don’t believe they can.  They fear that if they don’t sell the potential client, offer the inducement, haggle, no one will retain them.  More particularly, if they don’t do it, some other competing lawyer will, and snag up all the good, money making cases.  And so they offer everything from free consultations to S&H Green Stamps (are they still around?).

Don’t blame the clients for expecting lawyers to give it up for free.  Lawyers have created these expectations.

Update:  Max Kennerly  makes an important point, that this view is very different for the lawyer who is compensated via contingency fee.  While they are part of the problem, in that clients are unlikely to distinguish between the plaintiffs’ personal injury lawyer and the criminal defense lawyer when it comes to the manner in which time is used/wasted, the PI lawyer lives on contingency fees, and essentially never charges for time.  The fee consultation (which Max correctly notes is a misnomer, since there’s no “consulting” going on) is just the way in which they determine whether the case has merit and to pursue it; it’s not a time drain for them.

Unfortunately, personal injury lawyers do a lot of TV advertising, and tend to hype their “free consultation” as an inducement to call.  This impacts all lawyers, but it’s hard to blame contingency lawyers for doing what’s in their best interest.  They are in a different situation, and who can blame them for doing what works best for them.

Jimmy Carlino was 14 when he went to Boston to see a Yankees-Red Sox double header with family friend, Bob Oliva.  That’s where he says Oliva raped him. The problem is that the alleged rape happened “on or about July 30 to Aug. 1, 1976.” 

Bob Oliva is now 65, having retired from his position as basketball coach at Christ the King Regional High School.

Oliva, considered one of the pre-eminent high school coaches in the New York area for nearly three decades, won 549 games and five city championships in 27 seasons at Christ the King Regional High School, located in Queens. He stepped down last season, citing health problems stemming from the accusations.

Now he’s out on $10,000 bail, with orders not to have contact with Jimmy, who is now 48 years old.  Why, after 34 years, did Carlino raise these accusations?

Carlino’s civil attorney, Mitchell Garabedian, said Carlino is testifying against Oliva “so the truth is revealed and to make the world a safer place for children.”

It seems a little late to worry about making “the world a safer place for children.”  As for revealing the truth, that doesn’t require criminal charges.

If indeed Bob Oliva raped Jimmy Carlino in a Boston hotel room in 1976, then no amount of delay alters the fact that a horrible crime was committed.  No one, certainly not me, can excuse such a heinous crime against a child.  But accusations are easy, even when heinous.  And 34 years late is a problem.  Now there’s no evidence to show a crime occurred but for the word of a 48 year old.  And there’s no evidence to defend against the allegations but for the word of a 65 year old.

This is why the law provides for a statute of limitations, because no one can muster evidence in defense of heinous accusations 34 years later.  If defendants are entitled to defend, as is their constitutional right, then they no less permitted to be stripped of that ability by time than by anything, or anyone else.  So why not here?

Massachusetts prosecutors said they were able to prosecute the 34-year-old case because the statute of limitations remained frozen while Oliva was living outside of the state.

Charles  at Popehat  did the research, and found Ch. 277§63 of the Massachusetts criminal code provides that the statute of limitations is “[t]olled when defendant is not usually and publicly resident” in the state.  Well, that’s convenient.  For the nonresident, no case ever dies in Massachusetts.

From the statute of limitations angle, this is a very broad conference of power on the prosecution, given that Oliva did nothing to conceal his whereabouts, and in fact was quite easily found should anybody so desire.  From the prosecution’s position, they can’t be blamed for the delay, as there was no accusation until last year, when he reported the crime to Boston police for the first time.  To the extent that Oliva’s defense is prejudiced by the delay, it’s clearly not their fault.

However, the problem with a 34 year old accusation goes beyond mere statute of limitations.  Where a defendant is denied the ability to mount a defense against an accusation, whether heinous like this or not, it’s not merely a question of who is at fault.  So Jimmy Carlino, who is not a state actor and for whom the state is not responsible, is the one who failed to timely report the crime to police.  Bob Oliva is still left holding the defense bag.  As appealing as the deprivation of the constitutional right to defend may be, it’s unclear how well it will play with a judge.  It’s very hard for a judge to support the argument of someone who is alleged to have raped a 14 year old boy.

Consider how this plays out at trial.

Carlino:  Bob Oliva raped me in 1976.

Oliva:  No, I didn’t.

What’s a jury to do?  On its face, the testimony should not be able to survive a trial order of dismissal, no matter how truthful Carlino sounds or how detailed his testimony.  There is nothing about Carlino’s testimony that would make it sufficient to trump Oliva’s denial.  But few judges would have the guts to toss the case, not when the allegations are of the rape of a child.

Of course, while this is not proof of anything, there appears to be no accusation by any other person of sexual impropriety against Bob Oliva, despite his being around young boys in locker rooms for decades, 

You will find this video  of John McKenna, the Maryland college student being beaten on almost every blawg around.  The sworn allegations  against him in the post-beating prosecution were that he attacked and caused “minor injuries” to the horses and cops, and that he was kicked by a horse.  So there you have it, the cops proven conclusively to be lying, baton wielding animals, beating the daylights out of some happy kid having a good time skipping down the street. 

But this isn’t another opportunity to post a video that can be found on pretty much every criminal law blawg around today, but about the message taken from it.  One bad apple.  Or in this case, a few bad apples, but all beating a kid at the same time. There was a segment about it, showing the video over and over, on Good Morning America, with McKenna’s lawyer, Chris Griffiths, doing a superb job in the interview.

The video, and the story surrounding the video, still suggests that it’s an isolated incident.  But for the video, this would be just another story about a beaten kid complaining about cops without any evidence to back him up.  This isn’t to say that the police are wrong in every instance, but that the police can no longer wrap themselves in the presumption of being the good guys.  The question remains, when a video like this goes viral amongst the general public and mainstream media, how to make clear that this isn’t an isolated incident?

Before the pervasive use of video, those of us who claimed that vicious criminal attacks by police were the subject of derision; of course we would claim that the police were lying.  That’s what defense lawyers do.  But take this beyond the atrocity of watching cops, dressed in their black riot gear, striking a kid with batons.  Go beyond the cops who rush up after the initial assault, hoping to get some whacks in as well.  Consider the lies on the accusatory instrument, about horses and cops and kicks.  Griffiths also explained during his interview that the cops told McKenna not to mention he was injured, or they would hold him in jail over the weekend.  People at the jail, however, couldn’t pretend not to see the blood from his beating, and so he was treated.

Without a video, none of this happened.  Without a video, the perjured complaint is truthful.  Without a video, the coercion to force McKenna to participate in the coverup, the lie, would be incredible. 

This isn’t the first time a video of this nature made the rounds.  Remember the video  of New York City cop Patrick Pogon nailing cyclist Christopher Long during the Critical Mass protest?  That one went viral as well.  Then it faded from memory, and we’re now shocked by what happened to John McKenna. 

It’s likely that most people inclined to read Simple Justice are already aware of all this.  But we’re a distinct minority, whether by profession or inclination.  Some might accuse us of paranoia, antagonism toward the police, bias.  Certainly, our experiences lead us in that direction, at least as far as regular folks are concerned. 

This isn’t about fostering public hatred of police, however.  This is about healthy skepticism, the end of blind faith. 

How many videos, and beaten kids, will it take before the message sinks in?  Will another ten, another thousand, make a dent in the public consciousness?  Or will It always be one bad apple?

When I started my “But For Video” series of posts, it struck me that people would start to get the message after seeing that it not only happened, but happened regularly, if they were confronted with undeniable images of police misconduct.  I fear I severely underestimated the ability of people to deny.

First and second year associates?  “They’re worthless.”

That’s not me talking, but Paul Beach , General Counsel of United Technologies.  No, he’s not being mean to young lawyers, though there’s been a rush on sales of dart boards with his image.  He’s trying  to make a point . To law schools who refuse to acknowledge that their job isn’t to produce a never ending stream of esoteric and fantastic theories in overly footnoted articles, but lawyers.  To young lawyers, that you have much to learn and aren’t as brilliant as Justice Cardozo the minute you step away from law school.

I took a look at Lawyerist  yesterday after receiving an email from Aaron    asking if I would guest post over there.  My reaction was a bit snarky, given that it’s a for-profit blog dedicated to self-aggrandizement of the Slackoisie, though it was nice of Aaron to ask, given that most of what I have to say runs counter to the sensibility of his readers.

The lead post at the time was about going solo  straight from law school, with a provocative title asking whether it equals malpractice.  It concludes:

You can handle going solo. Read the rules in your state, confer with colleagues, and research as much as you need to. Be diligent and meticulous with your cases, and you will realize you are capable of more then you think.

Deep, huh?  Inspiring.  You can do it.  Just don’t screw up.  As Ellie Mystal writes at Above the Law , there’s mass delusion about the future of law students and young lawyers, each of whom believes that, odds be damned, they will be the one who wins the brass ring.

Honestly, the depths of hubris the would-be graduating class of 2013 shows here is beyond “self-confidence,” it goes straight to “self-delusion.” There’s no way 52% of pre-law students should be “very confident” about anything other than getting screwed with their pants on — and the fact that these same people can only point out the flaws in their own logic when thinking about other people is sickening. It’s the same idiocy that makes a person say “I can get a Biglaw job coming out of Law School X so long as I’m in the top ten percent of the class,” without understanding that everybody thinks they’ll be in the top ten percent of the class.

This isn’t about putting people down, or being mean, or bursting bubbles.  The blawgosphere is largely populated by the young, many of whom get irate at the lack of love shown them.  Throughout their lives, they been given nothing but love, and like any addict, they can’t live without it.  Truth and reality are unbearably bitter in comparison.

Dan Hull spells it out as clearly as possible

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At a minimum, we wish that law schools could convey a few truths, and what might be called “old verities”, to part-time clerks, summer clerks and grads:

1. Even for the most brilliant, motivated, resourceful and ambitious people, law practice is time-intensive and very hard–especially in the beginning.

2. Graduating from law school with top grades and willing to give practice the old Siwash try is only the beginning of your travail. Again, practicing law is hard. Even harder to learn how. And hard to maintain as years roll by at a comfortable and honorable level of quality. You don’t get to say this much: “Sorry, Jack, but I’m on my break.”

3. Real-life client problems pose extraordinary ambiguity and complexity (you can’t “Google” the answers; you may fret over some projects and have to stay late; at first, it may interfere with your relationships and your “real life”).

4. Maybe you’ll find that private practice is not for you. It’s not about the lawyers, courtliness, lawyer-centric cults of “professionalism”, bar associations, wearing cool suits, prestige, money or being in a special club. If you stay in it for all that stuff, even if you make big bucks, you will regret it. No, you will hate it.

5. Clients. Talented people with JDs are legion. It’s really about those you serve.

The blawgosphere is replete with people who wear cardigans and whisper sweet things into your ears.  They tell you how wonderful and brilliant you are, and how all the bad things happening around you are someone else’s fault.  No one is responsible for their own lives anymore, so don’t feel badly about being unemployed, or working in a boiler room, or blowing the case because, well, you just didn’t know what you were doing.  It’s not your fault.  Nothing is your fault.  Nothing.  And blaming others is almost the same thing as achieving something for yourself, right?

The internet offers the comfort that the real world denies,  There are a ton of blogs, chat rooms, websites, directed at making you feel good about yourselves.  You love them because they agree with you, that you’re not a loser.  They offer laundry lists of people to blame and hate for your failure to achieve everything your little heart desires in the first eight months of practice.  After all, you aren’t unreasonable.  You know that it takes more than 6 months to get the corner office.  But certainly 8 is more than enough to rule the world, right?

All of this would be just fine, except for one unfortunate detail.  Why are some of your contemporaries out there, working hard, growing as lawyers and human beings, learning from mistakes and accomplishing goals, while you are sitting in your mommy’s basement eating Cheetos, playing video games and whining?  It’s just not right.

Don’t want to listen to me?  Fine.  Listen to Paul Beach.