After reading the New York Times story of 15 year old high school freshman Pheobe Prince’s suicide, and the resultant arrest of two boys and four girls, ages 16 to 18, I was left with a wholly unsatisfied sense. 

“The investigation revealed relentless activities directed toward Phoebe to make it impossible for her to stay at school,” Ms. Scheibel said. The conduct of those charged, she said, “far exceeded the limits of normal teenage relationship-related quarrels.”

But nowhere in the story are we told what these six student/defendants did.  Despite my natural inclination to take District Attorney Elizabeth D. Scheibel word as gospel, self-serving conclusory characterizations aren’t exactly what a thoughtful reader would find acceptable.  At least not this reader.

The horror of a child’s suicide, any child’s suicide, is undeniable, but irrelevant to the question of whether the conduct of others is criminal.  The key is the conduct, not the way a prosecutor can characterize it without revealing an iota of substance.  That the media reported such crap, without demanding facts in place of adjectives and hyperbole, is a shame.  There is absolutely nothing in this article that distinguishes whether the conduct involved was mere bullying, as children often do, that inexplicably pushed one young girl over the edge, or something that should be recognized as criminal.  Without hard information, there was no way I, as a reader, could tell.

Apparently, others did not have the problem with the story that I did.  Ann Althouse, for instance, read something in the story that I must have missed:

Of course, it’s terrible when a young person commits suicide. And a suicide may have chosen self-murder because of the bad relationships in her environment. But if we don’t favor arresting people who are very mean to people who don’t commit suicide, why would we favor these arrests when someone does commit suicide?

So this is merely a case of very mean students and a young person who chose “self-murder?”  I read the story again.  Clearly, I must be missing something, as I see nothing whatsoever to support this conclusion.  A glaring hole in the story again, but nothing to suggest that the students charged had engaged in conduct that fell outside the purview of the criminal law.

Is it possible that Althouse is absolutely right?  You bet.  Is it possible that she is dead wrong?  You bet.  What’s troubling is the rush to judgment, facts be damned.  I sense a trend developing.  And it gets worse, as Lawprof Ann reaches for the disincentive rationale to support her assumption.

Assume you are a teenager contemplating suicide. If you knew the 9 kids at school who were meanest to you would get criminally prosecuted if you killed yourself, would you be more likely to kill yourself or less? I don’t know enough about the psychology of suicide to answer my own question, but my intuitive sense is that self-murderers — or some self-murderers — intend to deal a severe blow to the people they leave behind. And knowing your enemies will be prosecuted might spur you on.

I’m not shrink, but neither is Ann. Still, I don’t think teenagers are likely to commit suicide because they can exact revenge on people who were mean to them.  It seems that suicide, or self-murder as Althouse calls it, is a bit more extreme and that getting people you don’t like in trouble is not going to play a motivating role.  If a teen commits suicide, there’s a bigger problem underlying it.

I take no issue with Althouse’s questioning the meaning of the empty allegations of the Northwestern District Attorney.  I question them as well.  But I don’t, and can’t, reach any conclusion about whether a prosecution is warranted without knowing something about the underlying conduct.  I would love to join Althouse in condemning this prosecution based not upon the commission of criminal offenses, but being mean followed by the horror of suicide.  But without facts, I just can’t.  And I’m sorry that Ann can.

Before Avvo was even a twinkle in the eye of Mark Britton, he practiced law.  Having sat in the GCs chair at Expedia, and now in the Big chair at Avvo, he’s got a bird’s eye view of the other side of client relations, giving rise to two complementary posts, beginning with Law is a Jealous Mistress.

I came to understand the stress of a philanderer. Every time I was satisfying the needs of one client, inevitably another would call needing an emotional rescue. When it rained it poured – a juggling act often requiring 2, 3, 4 flaming swords in the air at once. It was as if there was a Batman-like light in the sky, telling all clients to call their attorney. So many times, buried in work and lack of sleep, I sat looking at a ringing phone wondering whether I should pick it up. This wonderment was often accompanied by regret that I had yet to buy that cot for my office.

Can you hear the shrieks of the work/life balance crowd echoing from every Starbucks?  When you achieve that busy practice you so desperately desire, you realize the downside very quickly.  Clients need you.  Clients want you.  Now.  Contrary to what anyone will tell you, clients are not particularly concerned with your personal happiness, free time and relaxation.  This was true of Mark’s civil clients, and is even more true of clients facing prison for a very long time.  Clients can be funny that way.

Mark goes on, in an Avvocating post, to offer some guidelines for maintaining client communication, and, when necessary, dealing with one client too many.

• Don’t pretend to your clients that they are your only client.
• If you don’t know something, tell your client.
• If you love your clients, set them free.

One of the “tricks” being prominently promoted these days is to make clients believe that they are your best friends.  Make them think you love them like your own children.  The notion is that people want to be loved and cared for, and if you convey that sense to your clients (or potential clients), they will rush to hire you.  Whether it’s true and scores the case, it can serve as the creation of an unrealistic relationship between lawyer and client (and client’s family) and become the source of enormous problems, anger and misunderstanding later.

Clients, like most people, want you to be concerned for them.  But that concern should be as their lawyer, not their wife, mother or therapist.  If you create the belief that they are the center of your universe, then don’t blame them for expecting you to live up to that belief.  Calls in the middle of the night, on the phone for hours at a stretch, discussions of feelings, angst, frustration, will become your stock in trade rather than providing the defense they’ve retained you for.  There aren’t enough hours in the day to do it all.

Then multiply that by every client you have.  Most clients know that they aren’t your only one, but the realization that your time must be divided up amongst your clients isn’t their first concern.  Creating honest expectations, telling the client that as much as you appreciate their concerns, you have another client who, at that moment, needs your time more than them, may not endear them to you, but also won’t mislead them.  When you make promises that you can’t or won’t fulfill, it will come back to haunt you.  You may forget about it as you move on to your next bit of work, but the client won’t.

There are some obvious things to consider to avoid the creation of false expectations that lead to miserable, and angry, clients.  Don’t take on work that you can’t competently handle.  This has two components, the first being volume.  Hours in the day do not expand with the number of clients you take on, no matter how much you want their case or the fee.  The give back for being retained is providing the representation required, and you can’t do it when you take on more clients than time allows.  This is often a problem for newer lawyers, for whom being busy is of paramount importance and are too inexperienced to realize the consequences of an excessive workload.  They mean well, but don’t realize they’ve gotten themselves into a jam until it’s too late. 

The other component is taking on a case that you’re not yet competent to handle, whether because you’ve never done it before or its simply way outside your skillset or level.  Not only will it take far longer to handle the representation when you have to go to school to figure out what to do, but your work will, in all likelihood, be far inferior to that of someone with experience and competency.  It’s great that you want to do that type of work, but don’t mislead a client into believing that you have a clue when you don’t.  Consider sending the case to someone more capable and working with that lawyer to learn how to handle it. 

There’s no shame in learning.  There is shame in telling clients that you know something when you don’t.  Hard as it may be to admit, no lawyer knows everything, even though clients may assume that “you’re the lawyer; you should know.”  Rather than seeing this as a challenge to your competence, see this as an opportunity to explain that there’s an awful lot of law out there, an awful lot of variables caused by the human condition, and no one has all the answers.  If we did, there would be no reason to build courtrooms, since we would already know the outcome.

The most important point that permeates Mark’s posts is that communication, whether for good news or bad, or just to let the client know he’s not forgotten, must be maintained.  Once your clients learn that you are working on their cause even when they aren’t watching, and you will call them, immediately, as soon as there is any news on their case, chances are that they will not only appreciate you (love being an inappropriate emotion or word to describe a proper lawyer/client relationship), but leave you alone to work, secure in the knowledge that you are working hard for them and will reach out to them whenever there’s anything to know.

Honesty and communication let us work better, and breath easier.  And clients like it too.  It’s the best way to show them that you “love” them.

Thank goodness for Flex Your Rights, an organization dedicated to teaching people, particularly young people, about their constitutional rights and the proper way to assert them.  They’ve released their newest video, 10 Rules for Dealing with Police, narrated by Baltimore criminal defense lawyer Billy Murphy, Jr. and produced by Steven Silverman and Scott Morgan.

As the point of this exercise is less to make money off the sales of DVDs than to inform and protect, the video is available through the Cato Institute, with the proviso that you have to endure a 5 minutes introduction by Tim Lynch before getting to the good stuff.

In many respects, it’s a very solid film and the rules are, for the most part, good.  My hesitancy is that it’s simultaneously a depressing commentary on the state of affairs on our streets, particularly if you happen to be black or Hispanic, and ignores to some extent on very hard, cold reality.  You can do everything right, perfectly right, and there is no assurance that you won’t be beaten to death before the encounter ends.

Here’s the beef.  Asserting rights, even done well, “respectfully”, and in accordance with the rules as provided, is itself a provocative act.  The film fails to explain that some police officers demand obedience.  As we watch the movie, we know that it’s being recorded so that others can see what’s happening.  On the real street, there will be no one making a movie of the interaction.  What happens for real, and how it’s later described by a police officer, may well be entirely different.

You asked for a lawyer?  The cop says you didn’t.  You never consented to the search? The cop says you did. You never touched the officer. Of course you did, or he wouldn’t have beaten and tased you.

This isn’t a flaw in the film, in that its purpose is to instruct people on how to navigate an interaction with police, assert their constitutional rights, and, assuming that the police respond properly, survive.  It’s the unknown variable that gives rise to the problem, that police respond properly.

Films like this empower people to assert their rights.  That’s its purpose, and it’s a great goal.  Far more often than not, defendants fail to properly assert their rights and allow the police to trample them.  They give them away for free all the time.  It makes criminal defense lawyers nuts when we hear about the defendant who consented to a search or couldn’t stop his lips from moving.  You were afraid?  You didn’t know what to do? Bummer, but it’s no excuse.

The only thing I would add to this film is a warning:  No matter what you do, no matter how well you do it, there is no assurance that the exercise of constitutional rights in a manner consistent with this film will not result in your arrest and conviction, your suffering all manner of harm, including death.

This isn’t a commentary on 10 Rules for Dealing with Police, but about police and our society.  Even best practices won’t save everyone.

Just before going to sleep last night, I received an email with a link to a slew of Youtube videos from IgniteLaw, an old fashioned tent revival show put on by Matt Homann’s business, LexThink, at the ABA TechShow in Chicago.  As opposed to my normal morning routine, reading news stories and blawg posts, I spent my time watching the videos, at least those that worked.

Bear in mind that this isn’t some wild radical subversive group hellbent on destroying the practice of law.  This comes with the blessing of the American Bar Association.  The subtitle of the program is “The Future of Law Practice: In Six Minute Increments.” 

Some of the segments were old news.  Eliminating our tendency to rely on paper when it’s unnecessary, for example, or embracing the use of new communications technology or billing methods.  Sure, it was presented in simplistic and jargonistic fashion, but they only had six minutes and everyone in the audience already knew all about it anyway.  If you weren’t part of the congregation, why be there?  

As  you’re reading this, you already know the internet exists and are more than likely familiar with the use of email. You can skip half the program, although it’s really kind of funny to watch people explain to a room of technophiles how paper works, or to a room full of lawyers  what lawyers do for a living.  Hint: We do not represent clients.

The other half dealt with lawyer marketing.  Imagine this: Attila the Hun speaking on diplomacy.  Kevin Chern of Total Attorneys speaking on the ethics of legal marketing.  Consultant/Professional Keynote speaker  Ari Kaplan, sans Prozac, challenging the faithful to push their marketing to the edge and beyond.  Take risks and be like Kaplan’s 4 1/2 year old child.  No, really.

Throughout the videos, you see shots of the audience, most of whom have a laptop open in front of them.  In the introduction, Homann asks those twitting to use a hashtag.  This is as geeky as it gets, and must have been an unbearable drag for those physically present (how old school).  Had it stayed in Chicago, it would have been fine.  Who cares if a bunch of poseurs, beloved of their avant garde approach to the banal, want to enjoy group sex?  It’s not like it was a room of practicing lawyers, who were unable to be present because they were busy practicing law.

There are, however, a significant group of lawyers who are susceptible to this sort of proselytizing.  The new lawyer.  The lawyer without business.  The crappy lawyer. The greedy lawyer.  The desperate lawyer.  And as one lawyer jumps on the bandwagon to “success”, others fear that they will be left behind, beaten to the punch by the lawyer who seizes the opportunity to use every means available to market, and jumps on before he’s left behind.

Why would they take this seriously?  This is the ABA.  The American Bar Association, the staunch defender of America legal mores and tradition.  If the ABA promotes it, it must support it.  And if the ABA supports it, it must be fine.  This is the way of the future or the ABA would want no part of it.  Quick, run out and buy hotpants before they’re all gone.

There are some assumptions that belie the lessons taught in Chicago.  That everyone markets.  That everyone wants and needs to market.  That marketing is good for lawyers and clients.  That without marketing, you will fail as a lawyer.

It’s a fraud.  Forget Ari Kaplan’s frenetic, breathless extortion to market like a four year old plays with a Wii.  It’s a lie.   One of the most offensive parts was the notion that legal ethics, being slow and plodding, resistant to change and unable adapt to ever changing technology, is to be ignored.  The problem isn’t with every new-found method of marketing being unethical, but rather with ethical approval lagging behind technology.  Just do it, and eventually it will be fine.

This is being promoted across the internet by a group of people who do not practice law, but who earn a living by persuading people who do that it’s okay to pay for their services, buy into their philosophy, and validate their business model.  This isn’t about your business model as lawyers, but their business model as snake oil salesmen.

That the ABA would tolerate this crap is a disgrace.  That the ABA would promote this cabal determined to convince lawyers that ethics are no longer a part of our obligation is inexcusable.  That they send this message to your computer is a conspiracy to commit wire fraud, because this is nothing but a lie.  It is not acceptable to engage in unethical behavior, even if it can make you money, even if it involves cool technology, even if a bunch of former lawyers turned pitchmen say so. 

What you won’t see at IgniteLaw is anyone spending their six minutes telling lawyers to work hard, put their client’s interests ahead of their own and conduct themselves with integrity and dignity, even if it means that they lose a few bucks in the process.

If only I could get the time back wasted on watching those videos.

The Supremes will hear oral argument today in Renico v. Lett, a chance to make sense of their predecessors’ decision in United States v. Perez, issued in 1824 BC.  The “BC” stands for Before Computers, a time when words were chosen carefully because brevity was at a premium.  It was far harder to write an opinion then, because it involved actually writing. You know, with your hand and a pen.  Not a Bic pen either.  Not even a Mont Blanc.

The decision in Perez is one paragraph.  A long paragraph, but still only a paragraph.  And it held that the Double Jeopardy Clause of the 5th Amendment doesn’t mean what it says.  Perez held that a person could indeed be put in jeopardy twice, provided the earlier trial was terminated for manifest necessity, whatever that means, as decided by a judge using sound discretion.  This is meant to distinguish between those judges who use unsound discretion.

It never even occurred to the Perez court that a hung jury constituted a failure to convict, or that lack of a conviction meant that the prosecution’s case failed to persuade a jury of twelve of guilt.  That could have been the end of it, had the Perez court so held.  Fail to convict, whether because of acquittal, the affirmative finding of a jury that the prosecution failed to sustain its burden of proof, or fail to convict because a unanimous verdict couldn’t be achieved, constituted the prosecution’s one shot.  The Double Jeopardy Clause means no second try.  There are no Mulligans in the courtroom.

Of course, Perez didn’t go that way.  A hung jury is nothing.  So what if the evidence failed to persuade twelve good men and true of guilt.  So what if the verdict of guilt had to be unanimous.  It would be different if they unanimously found the defendant innocent.  Oops.  That’s not what juries do.  But so what. 

Having long ago gotten past the hung jury question, the question today is whether a judge, without conferring with counsel, hearing argument, an Allen charge and on only the most cursory information, exercises sound discretion in declaring a mistrial.  Jeff Gamso describes the details:

It was less than two weeks ago that I took Miss Manners to task for promoting the notion that bloggers owed a duty to be nice to PR spammers.  The Manners woman, a/k/a Tamar Weinberg, self-proclaimed Social Media Rock Star (sorry if I’m repeating myself, but it always makes me chuckle)  says she won the battle, after running away shrieking.  Some people do that to drown out the laughter.

Later, Ken from Popehat let me know that Tamar characterized what happens here as “the business of business promotion.”  Ken nicely “explained” that she didn’t grasp Simple Justice.  It’s understandable that a vapid (and painfully narcissistic) Social Media twinkie would project her limited comprehension on law blogs and assume that we’re all in this for self-promotion, to make a buck, to strut around in hotpants.

But this left a question unanswered.  Where was the intersection between the world of substantive blawging and social media marketing?  What could possibly give the twinkies the impression that everyone else is in it for the scam?

My question was answered by Kevin O’Keefe’s post-ABA TechShow post, How to get coverage in law blogs.

At some conferences, talented PR professionals will introduce me to their clients. I want to be polite so in most cases I accept the offer. But I feel a little sorry for the CEO of a company I meet on such an introduction who asks ‘How can I get on your blog.’ They have little understanding of social media or blogs, they just want coverage.

Relationships, networking, engaging, authenticity, genuiness.  These are the words used in a language of lies.  Never confuse buzzwords with reality.  Social media marketers are so enamored of their lies that they can’t distinguish reality from the pitch.  They are intellectually and morally empty, and yet Kevin invites them into our world?  What are you thinking?

While Tamar may be a twinkie, she’s at least honest enough to admit that the only reason she ever stopped by here was because I used her name.  She’s got no interest in law blogs or criminal law,  It was all about her, which is fine since that’s what matters in her world.  And because I’m a troll, meaning that I haven’t been kind to her, she won’t be back.  That’s as it should be.  When someone has no interest in the substance of a law blog, then stay away.  If she had some interest in a subject that had some depth, she would have had a better grasp of what she was talking about.  She never will.

Don’t post comments or retweet posts to gain favor with someone merely to manufacture a “relationship” so that you can later capitalize on it to get “coverage” for one of your clients.  That’s not a relationship. That’s a scam.  No one needs friends like that.

Here’s a word that is rarely heard amongst the social media consultants: organic.  If there’s real interest, then nobody has to give you a paint by the numbers image to teach you how to create false friendships with others.  Comment because you are actually interested in a subject.  Twit because you actually want to twit.  Or don’t.  Say something nice, or not nice. Say what you really mean.

For crying out loud, be real. 

As for Kevin’s advice, maybe it applies to someone else, but not me.  Not here.  If Kevin, or any of his LexBloggers, want to establish relationships with the PR world, that’s his business, though I have some serious doubts that some of his LexBloggers, at least some who I know, have any interest in establishing deep, caring relationships with the PR world.  But he doesn’t speak for me, and there’s no interest here in becoming best friends forever.  You can forget about coverage.

If you happen to have a sincere interest in criminal law, on the other hand, your welcome here anytime.  And feel free to disagree with me.

Tell any member of the Slackoisie that they’re narcissistic and they’ll tell you that you’re wrong.  They deserve it all.  As with the Dunning-Kruger Effect, it’s almost definitional that the narcissist denies he’s a narcissist.  But the joint study by Jean Twenge from the San Diego State University and the University of South Alabama shows that narcissism has reached epidemic proportions in college students.

The study, led by SDSU psychologist Jean Twenge, sought to settle a hot debate in psychology over mixed results of studies examining the prevalence of narcissistic personality traits among tens of thousands of American college students. These traits include an unfounded sense of entitlement and overly high self-regard.

There is debate about the underlying causes of any increase in narcissism. Theories implicate parents, teachers and the media, which either allow or celebrate overly permissive attitudes toward individualism, and lead to an inflated and unwarranted sense of self-importance.

[Judge Weinstein] found that the monitoring, mandated by the Adam Walsh Child Protection and Safety Act of 2006, constitutes unconstitutionally excessive bail and violates defendant Peter Polouizzi’s procedural due process rights.

“The basic defect of the Adam Walsh Act, as applied, is that it imposes a mandatory limit on freedom of an accused without permitting an ‘adversary hearing,'” Weinstein held in United States v. Polouizzi (Polizzi), 06-cr-22.

Via Seth Godin.



Taylor Mali didn’t teach at my school.  But I had three teachers like him.

Taylor Mali didn’t teach at my daughter’s school.  But she had two teachers like him.

Taylor Mali didn’t teach at my son’s school.  And he’s never had a teacher like him.

Taylor Mali is wrong.  What he’s talking about is what a teacher can make, what a teacher should make.  It’s not what a teacher makes unless the teacher does what Mali says a teacher should do.  There’s no guarantee that a teacher will make what Mali says a teacher makes.  Most fail to live up to the ideal.  Miserably.

Same for lawyers. 

There’s no shame in being a teacher.  There’s no shame in being a lawyer.  Taylor Mali’s teacher is all about teaching students.  If he was a lawyer, it would be all about representing clients.  Excellence has become so old fashioned. 

“People think self-promotion is about yourself,” Kaplan told the Tribune. “It has nothing to do with promoting yourself. It’s about promoting others and let that speak for your character. That’s my philosophy.”

“These are just guesses here,” Homann warned the audience at the start of the program, “because no one really knows what’s going on with all of this stuff.”