The discussion about regulating lawyer free speech, as opposed to lawyers getting a half-way decent grip on how scummy their marketing can be in their race to the bottom, incorporates the notion of shaming those who are the root of the problem as a better way of handling matters than creating new laws that will deter free speech for everyone because of the 99% who can’t act appropriately.

Ironically, Amy Alkon makes the same point in her post entitled, I See Rude People on Reason.TV, included here just because I love the inadvertent message in the title.

While shaming isn’t the answer for all things, particularly since the shameless, by definition, don’t give a damn whether you call them out or not, as long as they can get away with whatever it is they want to do, it’s certainly a better first step than crafting a law prohibiting everything from public farting to wearing ugly ties.

More to the point, it’s time that we consider a return to norms of behavior that take into account how our conduct impacts on everyone around us, not to mention the ultimate ramifications for ourselves.  Only when that doesn’t work, and the problem becomes insurmountable, should we consider criminalizing Ugly Ties in the First Degree.  Whether or not this should be a capital offense remains unclear.

One of the great joys of the blawgosphere is the ability to have conversations across borders, one blawger addressing another’s views.  Of course, this is always more fun when there’s disagreement, spicing things up a bit and creating enough lively controversy to wonder whether it will come to blows.  Sometimes the disagreements are over obscure or trivial points.  Sometimes we square off nose to nose, taking diametrically opposed views on fundamental issues.  Often, there’s a tinge of political perspective infused into the fight, especially with those smug libertarians.

In the course of these battles, however, it’s often necessary to let readers know what the other guy (you know, the one who’s wrong) is trying to say.  There are two ways to do this.  First, there’s quoting the wrong guy, allowing his or her own words to state the position.  The other way is to characterize it, recreate the message in your own words.  I’ve got a problem with this.

Some have wondered about what they’ve called my liberal use of quotations in posts.  It’s not that I’m too lazy to paraphrase, or try to beef up my own posts with the words of others.  It’s that the actual words of others are both a stronger way of offering someone else’s position and avoids the tendency to conveniently create a strawman, a mischaracterization of another person’s point for the purpose of making it easier to beat them to a pulp.

It’s not that I’ve never characterized the words of another person, and it’s not that I haven’t done so and gotten it dead wrong.  I’ve done it, and I’ve done it poorly at times.  When my error is pointed out, I try to correct my mistake.  That’s not to be misunderstood that someone who is merely embarrassed by espousing some dumb position gets to change it in midstream, or clarify it after the fact to eliminate or alter the ugly part, but that something already said should stand or fall on its own.

It annoys me when it happens to me.  When I read someone else telling me what I said, but demonstrating either a misunderstand or creating a strawman, and it fails to capture my point, nuance or meaning, I get pissed.  Not so much that I’m afraid that they might win the argument, but that there’s a statement attributed to me that is false.  I didn’t say that. I don’t mean that. It doesn’t reflect my thoughts at all. 

There’s a blawger who was active in the early days of Simple Justice who would regularly riff off my posts to provide fodder for his own.  He would “tell” what I said, and then write about his own thoughts on the subject.  It wasn’t that he tended to disagree with me, as he often agreed completely with what he said that I said.  It was that he invariably got it wrong, misunderstanding my point and attributing statements or ideas to me that weren’t mine and with which I did not agree.  It was my ideas as filtered through his mind, and his mind was a dark dank and smelly place.  I eventually informed him that if he ever wrote about my posts again, I would pay him a visit and rip his sphincter out through his nostrils.  He gracefully stopped, and has never mentioned me again.

Sometimes, I read someone writing about what I said and find that I don’t have the slightest clue what he’s talking about.  The characterization of my words takes on some form that’s totally unrecognizable to me, and I’m not sure if he’s got the right person at all.  Other times, the words sound familiar, but the context is changed such that it gives the impression that I’ve expressed an opinion on something that I’ve either never considered, or that is inconsistent with something that I have written but isn’t included.  Either way, the attribution comes off wrong, and it’s just not accurate.

As much as I hate it when it happens to me, I hate it when I do it to others.  None of us are entirely guilt-free, despite efforts to be as accurate as possible.  Let’s face it, the blawgosphere doesn’t lend itself to the level of detail that is found in media where the writer has weeks to ponder and fact check his work.  We’re flying fast here, and clarity occasionally suffers. 

If I attribute words or ideas to you, and you feel that I’ve either missed the point or blown in completely, let me know.  I’m not trying to mischaracterize your words, and I can appreciate the annoyance of seeing someone mangle your thoughts into oblivion.  And if you’re telling the world what I think, I would appreciate your trying to keep it reasonably true as well.  Especially if you’re going to argue that I’m a blithering idiot and got it dead wrong, at least give me the courtesy of being wrong on my own and not because you’ve reduced my point to the absurd, incomphrensible or trivial.

The travesty of New York City Police Department’s “stop and frisk” practices and  statistics are well known, with well over half a million people stopped for no good reason and climbing.  The “why” was recently answered by Police Officer Adil Polanco, who gave up the quota demands, explaining why cops feel forced to turn kids coming home from school into perps spread eagle on the ground.

What hasn’t been talked about is the information taken from the 90% of New Yorkers who have learned the joys of their cheek being held down to the pavement by a cop’s boot while questioned and groped, only to be cut loose when their imaginations failed them and not a single charge could be invented.  Forms are filled out, data is input.  Information about a person who has done absolutely nothing wrong goes into the computer version of the Hotel California.

Bob Herbert at the New York Times challenges this practice.

This is not a small problem. The cops are making more than a half-million of these stops every year. A vast majority of the people targeted — close to 90 percent — are completely innocent. They are not arrested. They are not given a summons. After enduring a mortifying public encounter with the police — which frequently requires the targets to sprawl face down on the sidewalk or spread themselves against a wall or over the hood of a car to be searched — they are sent on their way.

What they’ve left behind, however, if they’ve shown their identification to the cops or answered any questions, is a permanent record of the encounter, which is promptly entered into the department’s staggeringly huge computerized files. Why the Police Department should be keeping files on innocent people is a question with no legitimate answer. This is Big Brother in Blue, with Commissioner Kelly collecting more information than J. Edgar Hoover could ever have imagined compiling.

Ms. Quinn does not oppose the tactic of stopping and frisking people, but said, “I have concerns that we have become overly aggressive in our use of it.” She said additional guidelines or regulations are needed. “I wouldn’t eliminate it from the Police Department toolbox,” she said, “but I would like to find a way to better monitor it and limit its use.”

In Banegas, the court’s stated reason for shackling the defendant was that “everyone in this court who has tried a case pro se that’s incarcerated” gets shackled. Nothing more was offered. Was it because the defendant was a safety threat ? A flight risk? An involuntary break-dancer? The record doesn’t reflect – it’s just how the court always does it.

In Deck, the Supreme Court took a look at the issue of shackling and identified several historical factors that should be considered in determining whether a defendant should be visibly shackled: 1) past escape, 2) prior convictions, 3) that nature of the crime for which the defendant was on trial, 4) conduct prior to trial while in prison, 5) any prior disposition toward violence, and 6) physical attributes of the defendant like size, strength, and age.

Despite whether the trial court uses these factors or other factors tailored to the particular case, it MUST state its reasoning on the record so that the issue may be resolved by the appellate court. When the appellate court is left to guess at the reason for shackling, it has no choice but to find a due process violation and vacate the conviction.

Dunkin’ Donuts was founded in 1950.  Policing was never the same.


No, occifer, that’s not cocaine.  That’s what’s left of my jelly donut.

Apologies to Dave Granlund and H/T to Ed at Blawgreview.

Update:  And, because there has to be something to show that they’ve faced adversity and survived:

Ever seen a cop frisk a donut?  Me too.  With love.

H/T Karl Mansoor

Gillian Hadfield, lawprof at the University of Southern California who’s visiting Hahvahd at the moment, offers this controversial proposition in an op-ed at the Washington Post.  The basic premise is that we, lawyers, have priced legal services out of reach of ordinary folk, while holding onto our monopoly for dear life.

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.

Nonprofit organizations as well as for-profit firms can develop specialized expertise in particular areas of legal need — housing, immigration, debt-management, child custody and so on. Often, studies show, specialized non-lawyer providers ultimately offer better service than the solo and small-firm practitioners who do someone’s taxes one day and provide criminal defense the next.

No need to point out all the problems.  We know what they are.  Studies fail to address those who are ruined when their $2,99 form from LegalZoom doesn’t do the trick.  But it still fails to provide anything remotely resembling a solution to the problem, that normal people cannot afford legal representation and advice.

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.

This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.

Hadfield is absolutely correct that we’ve done little to nothing to advance the cause of providing affordable legal services in this country.  This is a discussion that is way overdue, and the controversy created here is a welcome invitation to sort things out.

Much of what she argues is obviously silly and counterproductive.  Hey, what do you expect from an academic.  But read the comments to her op-ed and see the seething hatred that the public has for lawyers.  We can talk amongst ourselves and rationalize why the delivery of legal services in this country can’t be improved, but the public isn’t buying.

True, the public isn’t exactly on target with much of its criticism.  They complain bitterly, but simultaneously want the law to remedy every harm, real or perceived, immediately and at no cost to them.  As crazy as the law seems when it’s some other guy complaining, every individual believes that their grievance is worthy and deserving of a few mil, their damage worse than anyone else’s, their harm the most egregious ever suffered.  Ridiculous and hypocritical, but then, they aren’t supposed to understand.  That’s why there are lawyers.

Norm Pattis recently proposed a universal public defender system.  I don’t agree with the idea (and Norm doesn’t agree with me), but it’s part of an important discussion.  We’re not delivering now. We all agree on that.

Maybe legal services from your local Wal-Mart is the right idea.  Maybe it’s got the seeds of the right idea.  Maybe Wal-Mart, via economy of scale or some of its other tricks, can allow lawyers to provide quality legal services at a significantly lower cost to consumers.  I’m not saying it can, but I am saying it’s time to start thinking seriously about such notions that are immediately written off as “absurd” by the bar, especially the formal groups who love to spout platitudes but never hold the hand of a client whose life has been ruined by the beloved system, “not perfect but the best ever created.”  We’ve got a platitude that forgives us every failure.  Spouting platitudes doesn’t do much to help clients.

Much of what Hadfield says seems silly, naive, wrong-headed or just poorly conceived.  She solves one problem at the expense of another.  But what she does do is give us a good reason to talk about ways that the legal profession can do better to serve the needs of human beings.  And if that’s all she does, it’s good enough for me.  This is a discussion that needs to be had, before the local townspeople march on our law offices with torches and pitchforks.  Before more lives are ruined by the law.

The 2d Circuit has affirmed the district court decision in Alexander v. Cahill, holding most of the content based restrictions on lawyer advertising unconstitutional.  I wasn’t aware of the decision being issued yesterday until I received a call from a reporter asking for comment.  I should have read Turk’s post at New York Personal Injury Law Blog sooner, and I would have known.

When I learned that the circuit affirmed, I applauded the decision, causing great confusion.  How could I, I was asked, an opponent of lawyer advertising, marketing schemes and self-promotion, agree with the decision holding that lawyers should not be denied the first amendment right to free speech granted everyone else?  I explained. 

The reporter, like most people, assumed that if there is a wrong happening somewhere, there must be a corresponding law or regulation prohibiting it and a remedy to punish the wrongdoing.  It took a number of tries before I could break through this mindset.  While I’m not at all sure I convinced her, at least I believe she left understanding that as much as I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn’t mean that I support legal restrictions or prohibitions.  The former is bad. The latter is worse,

In the case before the 2d Circuit, the upstate law firm of Alexander & Catalano was big into advertising, with such strokes of brilliance as advising space aliens and appearing as giants, towering over the city as they ran to a client’s house.  Goofy, tacky stuff, but hardly the sort that could be taken as anything but goofy and tacky.  No sane client could be deceived into believing that they really were the law firm preferred by space aliens.  And if they were deceived, well, then they could have the client, if you get the picture.

If these particularly commercials were banned, it would be hard to lose much sleep.  But the rules to prohibit them swept with a broad brush.  From the Turk :

An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

No matter how one feels about lawyer advertising, these restrictions would impact a far wider swathe than space aliens and giant lawyers, and render speech that should certainly fall within the protections of the first amendment unethical.  As much as I would like to see these marketing efforts end, not at the expense of free speech.  Notably, however, the circuit left intact the general prohibitions on false and misleading advertising.  Not that they were really needed, since such restrictions have always been imposed on lawyers, as well they should be.

The missing link is lawyers ourselves.  I can’t envision any set of restrictions on lawyer marketing that won’t, coincidentally or not, be so overbroad as to include speech that lies outside and is entitled to protection, whether full or limited as commercial speech.  I don’t want my free speech restricted because your tacky and disgraceful marketing effort makes people’s stomachs turn. 

The Circuit has given lawyers a second chance.  Here’s the deal.  Stop the race to the bottom, the next effort to be even more outrageous, more ridiculous, more unprofessional and undignified, than anyone before you.  Stop trying to find some new way, some brighter light, some trickier claim, to make you stand out more than the next guy.  Stop it, and chances are very good that the state will not seek to recreate restrictions on lawyer free speech that will chill the rights of the rest of us. 

But if you continue to pursue the most absurd, outrageous, disgraceful means of promoting yourself, you’re begging for the next round  of restrictions.  Testing the waters to see how bad you can get before they come after you?  You will bring restrictions down on all of us.  That’s my speech at risk when you screw around.  I’m not prepared to give it up so you can pretend that your 12 minutes of legal experience means that you’ve won bazillions of dollars for llamas and judges love you so much that they offer to let you wear their robe.  And no, you are not known as “The Hammer” or “Bullet-Proof” to anyone.  If you want to call yourself “Nimrod”, we might have agreement.

Of course, I’m being naive.  If there’s a buck to be made somewhere, there’s a lawyer willing to put on pink hotpants.  Which is why people like Turk and Carolyn Elefant will continue to out your garbage in the hope that it will dissuade the authorities from imposing new restrictions, perhaps even restrictions sufficiently well-drafted to pass constitutional muster, and leave it to lawyers to clean up their own mess.

We’ve got a second chance. Don’t screw it up for the rest of us.

I will never forget that number.  That was my telephone number when I was a kid. The first two numbers of the exchange corresponded with a word and the letters on the dial. 

The reason I will never forget that number is that it was drilled into my head at a tender age.  If ever there was a problem, that was the telephone number to call home.  All kids were taught the number to call home.  Just in case.  We memorized the number, and the number didn’t change.  That was the number.

As I met with an old client yesterday, he gave me his new number.  I’ve got about 20 old numbers for him.  Maybe more.  I’ve got a dozen old numbers for my sister.  Maybe more. As I flip the old rolodex, I’ve got numbers crossed out, new numbers written in, for just about everybody. 

Will a child born today remember his home telephone number 50 something years from now?  What number does a parent today teach his child to memorize?

Todays marks the four year anniversary since the last time Associate Justice Clarence Thomas asked a question during oral argument.  Linda Greenhouse calls Justice Thomas’ silence “a weirdly compelling example of performance art.”

It’s unfathomable to me that he would choose to sit on the bench in silence.  The sheer monotony seems unbearable, the droning of sound from advocates where there’s no personal involvement, no exchange, no activity.  Despite the efforts of anyone arguing their cause, not every case is fascinating nor every argument compelling. 

Yesterday morning was spent judging the Wagner National Labor Law Moot Court Competition at New York Law School.  If this seems odd, it’s because I began law school with the intention of going into labor law.  Things don’t always work out as planned.

I’ve sat through maybe 50 oral arguments judging Wagner over the years.  I’ve heard student advocates who range from superb to just awful.  There are far more good ones than bad, and distinguishing between the merely good and truly excellent is a difficult task.  But I was reminded yesterday of the role that judges play in allowing advocates to shine or fail.

I sat on two panels yesterday, the first including two lawprofs.  The lawprofs found a minute nuance in a portion of one decision that was integral to the fact pattern to be particularly interesting.  They questioned the students about this highly nuanced point, asking incisive but obtuse questions, which clearly went over the student’s head.

After the argument, they spent more than a half hour arguing about the nuance. When finally it became clear that they had to bring the students back in for commentary, they continued their dispute and ignored the students’ efforts.  This was the first round of arguments in the competition, and the students learned nothing whatsoever about their strengths and weaknesses.  There was neither time (for me) nor interest (from them) to provide the feedback they deserved.

My second panel could not have been more different.  Unlike me, my fellow judges had either never seen the inside of a courtroom or had never argued before a judge.  A few lame questions were tossed out, asking for recitation of the obvious.  When I asked a tough question, they gasped.  Kids aren’t supposed to be challenged.  After that, the advocates were left to give their arguments with a silent bench. They completed them before their time to argue expired.

There is nothing worse for an appellate advocate than to face a silent bench.  Oral argument is the opportunity to hear the challenges to your cause and face your weakest point.  While some believe that no one wins a case at argument, or that judges have already decided who wins and loses before argument rolls around, I don’t buy it.  Let them try to shoot down my point, and let me have the opportunity to make my case.  Give me that chance to persuade you.  That’s what oral argument is all about.  If you don’t try to knock me down, I don’t know what issues the judges are concerned with and can’t address them.  Silence is death.

The other justices on the Supreme Court are not at all reluctant to ask questions, to challenge, even to ridicule, the arguments of advocates.  These questions are what advocates live for, to face them squarely and respond.  Without knowing what negatives lurk in the judges mind, we can’t confront them, change their minds.  We can’t win over anyone who remains silent.  We may not win them over anyway, but at least questions give us a chance.

I think the world of students who enter these national moot court competitions, who put themselves on the line to take on the challenge of suffering the possible crash and burn of the hard question, or the soaring accomplishment of a great response.  Either way, they will be better lawyers for the experience.  If only the competition judges don’t model themselves after Justice Thomas, and sentence these student advocates the cruel and unusual punishment of silence.

It’s almost always that case that videos that find their way around the blawgosphere show cops doing wrong, whether it’s the ubiquitous tasing of the impolite or the beating of the cuffed perp.  Always the example of what’s wrong.

The typical reaction from those inclined more toward order and less toward law is to explain that they have to tase, beat, control, or the cops might bear some potential risk that would expose them to harm.  After all, what are they supposed to do when confronted with some angry lunatic. Well, via Turley, consider this video as an option:

This driver is distraught.  Beyond distraught.  Cursing away, angry, all directed at this cop.  And yet the officer never loses his cool, never whips out his weapon.  He remains polite and firm.  He never feels compelled to show this driver who’s boss, or that he has the ability to teach him how not to anger a cop.

What’s remarkable is that no one ends up injured or dead.  This video proves that it need not happen, even when the driver is out of control.  Simple patience and calm are an option in the police officer’s arsenal, and everyone leaves alive.

Imagine.