In one of the most bizarre videos of court interactions yet, a young woman, Monica Contreras, complains in family court in front of hearing Master Patricia Donninger about being sexually assaulted by Marshal Ron Fox. Donninger, deeply dedicated to the law and with an abiding concern for the rights of those appearing before her, ignores Contreras completely while playing with her 2 year old daughter.

Bad enough? Wait for it…after Contreras is confronted by Fox and Marshal James Kenyon, she’s arrested and taken into custody.  For what?  Watch and find out.



The  Las Vegas I-Team reports on the background:

Monica Contreras went to family court with her 2-year-old daughter in August 2011. She was in the courtroom only a few minutes on a routine divorce case. Her husband filed for a Temporary Restraining Order against her during their divorce. He never showed up in court so the order was denied.

According to internal court documents, as Contreras was leaving, family court marshal Ron Fox ordered her into a waiting room for an unexplained drug search.

Contreras said Fox touched her buttocks, breast, and ordered her to lift up her shirt. A later internal investigation by Clark County courts validated her claims. Contreras went back into the same courtroom and told hearing master Patricia Donninger that her requests to have a female marshal handle the search were ignored.

Contreras kisses her daughter before being sent to jail. Her young daughter was sent to Child Haven. Two months later, Contreras filed a complaint with Court Marshal Internal Affairs.

Sources tell the I-Team, investigators were shocked they had not heard of the alleged courthouse sexual assault from family court Lt. Steve Rushfield. After a six-month internal affairs investigation, Fox was fired.

Nobody from Clark County courts told Contreras that her claims were validated. She only recently found out from the I-Team.

His attorney declined an on-camera interview but claims the marshal’s arrest was legal because nobody in the courtroom tried to stop him.

Adam Liptak, in his  New York Times Sidebar column, raises what at first blush seems like a ridiculous question: If life without parole is unconstitutional for juveniles, is it permissible to sentence a child to 100 years in prison? Isn’t the point that children should not be sentenced to die in prison?

That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life.

Alito said it was fine in his dissent, but that’s Alito and it was only said in dissent, so who cares?

The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

Whether it’s called “life” or a term of years in excess of any remote chance of ever getting out is form over substance.  Sure, everyone thought the Supreme Court’s Graham decision meant something for juveniles, reflecting its rejection of the overly harsh “child predator” myth and a recognition that children haven’t developed the maturity and responsibility sufficient to be held so accountable, and punished so severely, that their life was over.  That’s what we thought.

Except they never quite said so, and have since taken a pass on the opportunity to clear up the confusion they invariably leave behind.

“Some courts have held that such a sentence is a de facto life without parole sentence and therefore violates the spirit, if not the letter, of Graham,” Judge John M. Rogers wrote for a unanimous three-judge panel. “Other courts, however, have rejected the de facto life sentence argument, holding that Graham only applies to juvenile non-homicide offenders expressly sentenced to ‘life without parole.’ ”

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

The Supremes denied cert to Chaz Bunch, who was 16 when convicted and sentenced to 89 years in prison, making him eligible for parole at 95, after the 6th Circuit affirmed his sentence.

While it seems too obvious for argument that a sentencing court can’t do one way what would be unconstitutional another, so that if life without parole violates the 8th Amendment’s prohibition on cruel and unusual punishment, so too would a 100 year sentence.  To suggest otherwise is sophistry of the Alito sort.

And yet the Supremes weren’t sufficiently concerned with Bunch’s homecoming at age 95 to take the case and refine their message, leaving circuit courts hanging as to whether Graham means what it says or says what it means.

The reason seems most like to be Judge Griffins question: if a term of years that serves as a de facto life sentence is no good, then what is acceptable?  How many years is acceptable under the 8th and when does a sentence cross the line?  If a defendant is younger than 18, can you add the difference in years to the end of the sentence since his life expectancy will be longer?  Okay, that last one seems a bit too trial, but still it’s part of the equation, and it’s one of many smaller question that have and will arise:

Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said.

While the words “sporting chance” may be a bit flip, the point remains. These are children, and there should be some hope of redemption and return to society, if only for the last few years of a life in being.  But putting that concept into action is hard work, and it appears the Supremes, having opened the door to the question, have no answer.  So rather than finish the job they’ve started, they will spend their time ironing their robes while Chaz Bunch’s 89 year sentence goes unreviewed.

If it were up to me, the answer would be that any sentence imposed on a juvenile that’s long than it takes for a police officer’s pension to vest would be unconstitutional. But then, I’ve yet to get a call from my senator informing me that my name has been put in the mix for the next Supreme Court opening.  For me, 100 years is a lot of life to lose. Too much.

The point that any other driver who ran a kid over would have been tried by now can’t be ignored. That Brooklyn DA Chuck Hynes has yet to get off the dime a year after Tamon Robinson was killed can’t be attributed to anything other than the fact that the driver of the RMP was a cop.  They must “investigate,” where it would be prosecute if it was anyone else.

The  Daily News makes the point:

The official accident report states the police car was stopped on a footpath outside the Bayview Houses last April when Robinson “did run into” the vehicle, causing him to fall backward and strike his head.

Cops were in pursuit because Robinson, 27, had stolen paving stones from the project’s grounds. But multiple witnesses came forward, saying Robinson was deliberately mowed down by the cops.

Faced with the conflicting accounts, Brooklyn District Attorney Charles Hynes hired an accident reconstruction expert in Massachusetts six months ago who has no ties to the NYPD.

And to date…nothing.  Robinson was being chase because cops believed he stole some paving stones, although friends told the  New York Times that he had permission to take them. And then there were the initial police reports following his death.

When officers arrived, Mr. Robinson ran toward his building, but a police car hit him before he reached it, according to a police report about the events, which took place around 5:30 a.m.

This wasn’t controversial until the “official report” came into being, which told a different story, that he “did run into” the cruiser.  Like the dead man “did run into” the speeding bullet aimed at his head.  It’s not that the cops didn’t care deeply for Robinson’s welfare, as reflected in their yelling “wake up, wake up” before “bouncing him off the hood of the car.”

To make the story even more trite, the City then  sent Robinson’s mother a bill for $710 to repair a dent in the car that killed her son, sending it off the a collection firm for payment.  After the Daily News disclosed the collection effort, the City backed off.

A spokeswoman for the city Law Department said the notice seeking $710 was “sent in error” to Tamon Robinson, a 27-year-old who was killed in April as he fled from police who had spotted him stealing paver stones outside the Bayview Houses.

“We regret that Mr. Robinson’s family received a collection notice,” said Law Department spokeswoman Kate Ahlers. “We recognize that this involves a tragic case.”

The bill was sent in September, 2012.  Tamon Robinson was run down by the cruiser on April 12, 2012.  He laid in a coma for six days before he died.  Chuck Hynes, who couldn’t believe the initial police reports or anything said by the people who watched Robinson get run down, hired a professor about six months ago.

If this wasn’t a cop behind the wheel, would the one year anniversary of Tamon Robinson’s death pass without the district attorney having indicted and prosecuted the perpetrator?

Or maybe if the person run down had lived on a cul-de-sac rather than the Bayview Houses, the investigation would have moved along apace.  Either way, paving stones in Brooklyn are safe. People, not so much.

And if you’re bothered by the write up using the passive tense, “did run into,” it’s not a deliberate act of irony but just the way they do these things.  It makes them sound more official so you won’t mind that a year has passed, a kid died, and nothing has happened.

The  Washington Post has a curious article about how criminal defense lawyer Robert Miller, bored waiting around for a jail visit, decided to rate the place on Yelp.

Lawyer Robert Miller has visited five prisons and 17 jails in his lifetime, but he has reviewed only three of them on Yelp. One he found “average,” with inexperienced and power-hungry officers. Another he faulted for its “kind of very firmly rude staff.” His most recent review, a January critique of Theo Lacy jail in Orange County, Calif., lauds the cleanliness, urban setting and “very nice” deputies.

Miller gave it five out of five stars.

The problem is that few people pick their jails. Five stars. One star. Whatever.

As Miller acknowledges, it’s not the kind of helpful testimonial commonly found on Yelp, the popular consumer reviews site many people turn to for recommendations on, say, bowling alleys and Chinese takeout. But as Yelp grows more popular — logging 36 million reviews as of last quarter — lawyers as well as prison inmates and their family members have turned to the site to report mediocre food and allegations of serious abuse. They join the enterprising reviewers who have used Yelp to critique traffic signals and public bathrooms.

While it can be informative if a family member wants to know just how bad, or not so bad, the life of their loved one is going in the can, it’s not the same as Chinese takeout.  But it struck me as to whether this was the new wave of communication, the new way to complain even if there was no choice involved.

This stuck on my radar because of a post at an anonymous blog called  Unclean Hands about how the families of prisoners were treated by the guards when visiting their loved ones.  The author writes of a young grandmother and her two young grandchildren, presumably going to visit the daughter/mother, while the writer, a lawyer, observed as she waited for a prison visit.

The three waited at the metal detector for Officer Tackleberry, who ignored them for at least 15 minutes while pretending to shuffle papers and talk to B. and me. I squirmed as Tackleberry was so polite and kind to us, and again explained that the whole prison goes to shit when she takes a day off. I looked over at the family, trying to catch their eyes to silently apologize for being white, for being a lawyer, for wearing a suit, and for being treated nicely. We got friendly chit-chat. They got rude, sharp, and exasperated barks.

Finally, Officer Tackleberry made her way over to the metal detectors to inspect the family. The little girl, dressed all in pink with cute, freshly-done twists in her hair, went too quickly after her brother, almost skipping through. The entire family was forced to go back through the metal detectors one by one as punishment.

Neither the grandmother nor grandchildren were guilty of anything beyond caring for someone inside, and yet the guard treated them like subhuman garbage, a nuisance to be dismissed at best.  The author simultaneously felt the anger any caring and rational person would feel about the needlessly poor handling of human beings, while feeling the guilt of being a lawyer, receiving the preferential treatment that institutions tend to provide.  It’s not that lawyers are treated well, but not nearly as offensively as nonlawyers.

While in the waiting room, I felt humiliated. Later, when I was inside the visitor’s room saying goodbye to my client, I saw the little girl dressed in pink on her mom’s lap, the mom dazed and crying, rocking her baby girl tightly. Then, the anger socked me in the gut. Not only is these children’s mother in a maximum security prison–G-d knows what happened to get her there and what it did to them, not only are these kids without her on a daily basis, but in order to get to see her, they must go to a scary prison every time and be yelled at, humiliated and debased. This seven year old and eleven year old know more about the system than I do.

Some lawyers are obliged to visit jails and prisons on a regular basis, and they tend to both know “the ways” of the particular institution and often even the personnel. It’s useful to smooth the process, which is usually terribly time-consuming (read wasteful) and unpleasant.  But what lawyers endure is nothing compared to what families endure, what children endure.

Even lawyers play nice with guards. Getting on the wrong side of a guard can make things far worse. The delay in getting in can be counted in minutes or hours, and that’s at the guard’s discretion.  They may have rules about such things, but piss off a guard and watch as names can’t be found, papers get lost, communications are missed, and you sit there and wait.  And wait. And what are you going to do about it? Leave and go to another, more amenable prison?

Despite their treatment, the grandmother and her charges have no choice but to silently endure the idiocy, the abuse, the discourtesy of the guards. To be fair, it’s not always that way, and I’ve seen guards treat visitors as with relative kindness.  But if they want to be abusive, there is no one to stop them.  And if the visitors don’t care to suffer the abuse, too bad. There is no place else to go, no place to complain.

Maybe they can leave a review on Yelp about the prison, urging people not to be warehoused there for the duration of their sentence.  Or maybe the message is that if a loved one is imprisoned, abandon them rather than have to tolerate the discourteous guards.  Go to a nice restaurant instead.

A few days ago, a reader sent me a link to a JD Underground thread and suggested that it would enlighten me as to how young lawyers were thinking. The thread began with a question,  Might start non-profit–what services to provide?

I’m thinking about opening a non profit and providing free/hugely discounted legal services so I can get the PSLF* and also gain some experience…What are some basic, easy to learn services that I can readily offer clients to build up volume? I’m thinking form-filing stuff at this point, but any advice would be appreciated.

There is certain virtue in this question, though it may not be obvious at first.  The person asking the question is thinking about alternatives to address his circumstances, most notably the crushing debt load. He (I assume it’s a “he”) is trying to do something rather than sitting on the couch eating Cheetos and pondering the misery of his choice to go to law school.  He’s trying.  He gets points for that.

The problem arises from that part of the question which seeks “some basic, easy to learn services.” Or to put it differently, what practice area of law requires no knowledge or skills?  Some of the responses include:

Bankruptcy seems like a good fit. Chapter 7 and 11. I don’t know tons about it but I think consumer 7s and 11s are fairly easy to learn.

…you’d be better off getting a job at legal aid.

tenants rights cases, restraining orders, small claims advice, non-complicated wills are a few things that spring to mind.

Help parents of special ed kids who have no choice but to put their kids into public schools. Special ed advocate, attend IEP meetings so the parents can’t get ambushed, etc.

To the credit of the forum, there are others who challenge the ease with which someone who “the only thing is I don’t really have any real skills” could perform these functions.  The problem is that the OP’s question has but one mission, to address the repayment of student loans.  Nowhere is there a suggestion of any desire to be a lawyer, to practice law, to practice any particular area of law. The only criteria is what is so easy that someone with no skills can do it.

There was recently a very troubling post at  the Puddle where Chris Bradley, an occasional lawyer when he isn’t writing marketing copy, instructs the groundlings that the only thing needed to successfully handle a deposition is to “show up.”  Jordan Rushie at  Philly Law Blog wrote about the need to actually have a clue when doing depositions.  Alex Craigie, At Counsel Table, ripped a broader swathe by noting that lawyers are not potted plants.  As for “just showing up,”

It’s not enough. Or nearly enough.

And in a footnote:

I mean no disrespect to monkeys, trained or otherwise.

If all lawyers need to do is just show up, then we may well have no raison d’être. And indeed, it may well be that in certain traditional lawyer roles, the “expertise” that might have been required 100 years ago has since been commoditized and minimized.  It may well be that some of our functions no longer require a lawyer and can be adequately handled by a non-lawyer, a paraprofessional, the hard-working but nice man who puts your trash in the back of his oddly-shaped truck. 

To the extent this is true, then it’s time we parse our functions and open the door to non-lawyers, or people with less expensive qualifications who are more than competent to satisfactorily handle the matter.  I’ve made  my suggestion as to what should be done, not that anybody cares.

But if the question asked at JD Underground is what practices areas of the law are best suited for a person who is without skills or a clue, the answer is clear: None.

Sure, there are time when a particular service ends up going smooth and easy, requiring little if any thought and filling in the blanks ends up being more than sufficient. But then there are also times when a well-placed bit of insight can turn sufficiency to excellence. More importantly, there are times when that insight can prevent what appears to be sufficient at superficial blush from turning into disaster.  That’s what distinguished a lawyer’s services from a form-filler.

The other question is whether there is any area of law, any niche at all, that this person gives a damn about.  Does it interest him? Does he feel he might make a difference and help people? Is there any tug, even the slightest, that draws him toward an area of law?

It’s understandable that a law student facing crushing debt must deal with the harsh reality of his poor choice, but that choice is made all the worse by what appears to a lack of purpose in entering the law in the first place.  If the only issue is what he can do that requires no skills, then why go to law school at all?  Because mommy assured you it was the a guaranteed path to middle class stability?  Because dad wanted you to be a “professional?” 

If there is no area of law that interests you, then get the hell out. You won’t be a good lawyer. You won’t be a happy person, spending your days doing something that holds no interest for you solely to put to use your expensive and poorly chosen education. Deny you ever went to law school so you can find a real job, and use the income to pay for your wayward youth.

But trying to find a niche in the law where no skills are needed only compounds disaster.  I agree with Craigie, that this reflect no “disrespect to monkeys, trained or otherwise.”  If you can’t be a real lawyer, don’t be a lawyer at all.

* PSLF stands for public service loan forgiveness.

Lawprof Bill Henderson was part of the ABA Task Force on the Future of Legal Education, charged with coming up with tough measures to deal with what anyone more thoughtful than a dirt pile now concedes is a royal disaster.  He writes about it at The Legal Whiteboard.

The issues are well known, too many warm bodies, too expensive, too impractical an education to allow students to put it to use without a second education in how to actually practice law.  Yet, putting anybody in a room with the ABA seal of approval is almost the kiss of death of solutions, no less tough measures.

Contrary to what outsiders may believe, the ABA types don’t reflect boots-on-the-ground lawyering, where trench lawyer-types make hard choices every day, and put solving problems ahead of the niceties of cooperation, consensus and civility.  It’s not that we’re not civil or try to be cooperative, but that the primary goal is fixing a mess, and we never forget it.

Bill was, how shall we say, unconvinced that “deliberative bodies” such as the Task Force had the wherewithal to deal with problems of the ABA’s own making, such as its accreditation requirements, but offers a twist.

These programs are laudable and, from an institutional perspective, necessary.  But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change?  History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down.  Change will occur at the bottom from either the desire to survive or the opportunity to do something great.  Other similarly situated institutions that feel less urgency or inspiration will eventually perish.  It is just that simple

The accreditation system we have created is an anachronism.  But if we think the ABA Standards are holding back the forces of innovation in legal education, we are kidding ourselves. Any law school or law professor who wants a better way can have one — we are all like Dorothy and her red slippers in the Wizard of Oz: we have had the power all along.

It’s certainly true that no one really needs the ABA’s permission. Indeed, being somewhat Malthusian, I suspect nature will provide a harsh but effective solution to thin the herd regardless, though I doubt it will suit any of the stakeholders. But if the stodgy ABA types can’t manage to get off the dime, Bill suggests that Dorothy can do it without them.

From an analogy of his own experience, pre lawprof, as president of his firefighter local union, Bill explains how they joined together in their mutual self-interest to push through a highly beneficial law which allowed his union members to submit the inevitable impasse to binding arbitration. Naturally, it meant that they got a raise no matter what, as public sector arbitrators are invariably inclined to do.  Bill had told me of his sordid past, so this came as no surprise to me.

His suggestion is that Dorothy is a lawprof, and if the prawfs could organize themselves and click their heels, they could force the change that the ABA can’t or won’t.  They can rip the accreditation process from this dinosaur’s claws.  This leaves the future of law school to the sensibilities of lawprofs. The problem is that the present state is a product of the best ideas of lawprofs, who held that wing of the ABA captive at the time and created rules that favored them at the time.

One alternative is that the law students and young lawyers, for whom the disaster has had the greatest impact and who, like the lawprofs, are sufficiently interested that they can, and have, organized into “unions” to force change.  But having had the misfortune of spending a bit of time the other day watching a particularly vocal segment of them interact, this holds little promise. 

A blog called Outside the Law School Scam, purportedly to start from the point where Paul Campos’  Inside the Law School Scam left off, offered a  vapid critique of a post by  Keith Lee urging young lawyers to get off their butts, stop whining, and make their life happen.  Brian Tannebaum jumped in to back up Lee’s view, which generated one of the most  absurd attacks ever launched from behind the jungle gym.

That it was snarky, vicious, infantile, even anti-semitic, didn’t bother me greatly. Even children can be amusing, and tone should never get in the way of substance. Though I might have preferred they spend their time worry about whether to  pay down their debt or save for their future, they instead found it more important to “burn” Tannebaum.  “Burn,” apparently, is a term of art among digital natives, meaning that they “won” the battle for playground hegemony, even if only in their own unformed minds.

But it was a modern day example of what in my youth would amount to screaming “your mother wears army boots.” Painful as that may be to a third grader, adults aren’t particularly persuaded by such cries. We live in reality, not juvenile fantasy, and we know our mother doesn’t wear army boots. What saddened me deeply with the monumentally poor grasp these young lawyers had on what constituted valid reasoning and their tenuous grasp of reality. As amusing as their snark may have been, their critical thinking skills were largely nonexistent.  Without them, they cannot be Dorothy.

So if Dorothy shouldn’t be lawprofs, and can’t be law students or young lawyers, the only stakeholders left are more mature and experienced lawyers.  And from what I’ve seen, we aren’t sufficiently interested in the fiasco happening in law school to take time away from trying to serve our clients or make a living. 

Malthus for the legal profession is beginning to seem the most likely default, and it is highly unlikely that it will please any of us or make our profession any better. But unless something gives, it will happen whether we want it to or not.  We can wait for Swift to make a modest proposal to shake us out of our lethargy and self-absorption, or we can spare a few moments that we might otherwise spend learning how to  use twitter to build a successful law practice and serve as the counterpoint to the lawprofs’ self-interest and the law students’ terminal immaturity.

It’s 9:08 a.m. on a Saturday, and I should be in the midst of a meeting with a fellow with whom I made an appointment to do some work on my home. A neighbor used him, and told me he did a decent job. She also told me that he talked too much.

Me: Does he take a hint to stop?

Her: No, not at all.

Me: So what should I do?

Her: The only way to get him to stop is to tell him to stop talking. Anything less direct and he doesn’t get it.

Me: So just tell him to shut up?

Her: Pretty much. Or stand there for an hour and listen to him talk about nonsense that means nothing to you.

Me: Got it.

It wasn’t that I didn’t care that he was a talker, but that my options were limited.  Following Hurricane Sandy, there were things to be fixed.  I called about, but couldn’t get anyone on the line. No one even called back. For the moment, the people who fixed things were in great demand, and didn’t need the work. They would, of course, need the work later, after they milked the storm for all it was worth, and then they would come begging, hat in hand, for any work they could find.  But for the moment, they were in demand.

Being a principled person, I had a problem with calling people in the spring who were too important to return my call in the fall, which is why I sought my neighbor’s advice. She had someone I didn’t call, and therefore it wouldn’t violate my sense of propriety to contact him now.

Dr. SJ had seen the work done at the neighbors, and thought it looked fine.  Speak with her, Dr. SJ commanded me. Find out her person and call him, she implored. So I did.

He returned my call a day after I left him a message, and we spoke briefly, with him asking me to email him my address and contact information, and then launching into a description of the wonders of his services. I cut him short by telling him I had to go, and sent off the email.

I heard nothing back for a week. I sent him another email, asking if he received the first.  He responded by suggesting that we meet today, and asked if that was good with me and for a time. I replied that it was good and gave him a time of 9 a.m.  He sur-replied “perfect, see you then.”

And here I am, typing on a computer instead of meeting with him because he called me at 8:55 a.m. to tell me he was running late for our first meeting.  He launched into an explanation of the many very important things he had to do this morning that caused him to run late to our appointed meeting, but I told him to stop talking.  He sounded hurt.

At least he called.

Heads were exploding. It’s always fun to watch heads explode. Carefully crafted business plans were dropping like flies, as desperate twits trying to spin the words were typed furiously.  Avvo’s Lawyernomics conference was in full force, and somebody let Sam Glover onto the stage.  There will be hell to pay.

Before you rip me a new one, yes, that’s the same Sam Glover who owns the Puddle. Yes, the same Puddle that offers insipid, superficial advice from lawyers who have yet to need a shave about how to be a fabulous lawyer, not necessarily wrong but invariably inadequate. But then, remember that Puddle readers tend to prefer small words, ideas that require no chewing and numbered lists so they can check them off.  It’s not the same crowd as here, so don’t judge them harshly.  That’s my job, anyway.

Even though my  Lawyernomics closing keynote address is fully written, somebody at Avvo forgot to send me a first class ticket to Vegas, so I have to count on others at the conference to provide a counterpoint to the facile nonsense they’re giving the sad mopes who paid to attend.  Like this:



Then Sam gave his presentation, gracefully entitled “Why your blog sucks (and what to do about it).”  He begins with an apology for his role in making our world a little worse.

A lot of lawyers have blogs. A lot of those blogs suck.

I suppose I am partly to blame for this. For years, I told every lawyer who would listen that he or she ought to start a blog. I explained that a blog was a great way to get clients in the door, as if that would magically happen if you started posting something on your blog every few days. I neglected to explain how to write a blog that doesn’t suck.

Write good stuff because you want to that other people will want to read.

That’s when the heads began to explode. Sam Glover, friend and confidant of the Slackoisie and marketers everywhere, speaking truth to his tribe?

This comes as no surprise to me. I’ve watched Sam develop for a while now, having been occasionally critical of his ugly baby, even if in a way that made him feel somewhat less than fully appreciated.  They don’t like tough love at the Puddle, but its merit becomes undeniable over time.  And I attribute time and natural maturation to Sam’s epiphany.  Reading what Sam writes, I have seen him recognize how the notions he promoted a few years ago were, how can I say this nicely, bone-headedly wrong.

The point is that the baby lawyers who thought they knew it all grow up.  They gain experience, suffer the indignities of reality over time, and come to realize that neither life nor the practice of law is nearly as easy and simple as they once believed with all their heart and soul.  If they have half a brain, and by no means is Sam not a bright fellow, their eyes eventually open and they see that the stuff the mean curmudgeons talk about has been happening all around them the whole time, and they were just too busy believing their own nonsense and validating their own choices to see it.

Sam Glover is coming into his own.  And I, for one, am proud of him.

He’s got a ways to go still, as is apparent from his Lawyernomics talk. The business he got from the name recognition he developed as a baby blogger might have been pretty good for a n00b, but will be the stuff he doesn’t want as his practice matures.  He will come to realize that things that work in local niche practices don’t scale or work for lawyers in other practice areas.  His tolerance for the hundreds of phone calls for free answers will wane.  But all this takes time.

A glaring omission is that not everyone can have a viable blawg. For some, the love of writing isn’t enough to make their output sufficiently interesting to anyone else.  For some, there will be the painful lesson that their best ideas are deemed by others to be, well, dumber than dirt. Not every lawyer’s thoughts are brilliant. But the overarching reason is that even if they’re good, there isn’t enough room for ten thousand blawgs. Nobody has that much time to read. 

Still, watching this change happen to Sam has been enormously gratifying to me. Contrary to those who think curmudgeons hate the babies, we are very much interested in helping them to move beyond their infancy and become productive members of the profession. We are here to help, and willing to give of our time and energy to aid in their success. We want nothing from them, no business, no money, no adoration, and see our role as an obligation of one generation of lawyers to those that follow to move them from crawling to walking to running.

But it is fun to watch Sam make other people’s heads explode. Mea culpa. And it’s good to know that there will be lawyers in the generations that follow the grey-beards who aren’t satisfied with wallowing in the gutter.

Special Added Attraction: And if you think I’m dead wrong here and just a complete and total douche,  Bruce Godfrey offers you a blogging form to facilitate your path to awesome wealth and prestige.

Update:  Colin O’Keefe, Kevin’s kid, interviews Sam Glover for LXBN :

When a multinational corporation finds out that some of its tens of thousands of employees, agents and their nasty friends are up to no good under the Foreign Corrupt Practices Act, they open the big money pit in the back of headquarters and throw in tons of cash.  Well, actually they hire lawyers to conduct investigations to prove them guilty as sin and, for good measure, alert the government to prove what good corporate citizens they are.  But it’s the same thing.

Ralph Lauren, the fellow who sells more shirts with a polo pony on them than with the name Lipschitz emblazoned on the breast, found out the hard way that the playbook is a harsh and expensive solution. Via Lawrence Cunningham at Concurring Opinions :

Ralph Lauren Corp.’s mid-level executives discovered that a few line employees in Argentina had bribed local officials. That enabled importing of the company’s clothing products without the necessary paperwork or inspection.  The bribes, paid from 2005 to 2009, ran to $593,000.

A routine internal corporate review of controls and compliance programs by Lauren managers uncovered the employee actions.  The corporate response was swift, a textbook exercise in corporate crisis management.

Crisis management may not be the best way to describe it.  Yes, it’s the “common wisdom,” but that comes from former government prosecutors who have shifted to Biglaw “defense,” which means they hold corporate hands while walking them to the United States Attorneys office to confess, write checks larger than the economies of several small nations and offer their first born.  For substantially larger sums, these specialists tell their charges there is nothing to be done other than kill off employees, concede malfeasance and throw money away, a not-insignificant chunk of it ending up in their hands.

A prompt investigation was conducted, involving translation and examination of documents and interviews of witnesses.  It resulted in dismissal of several employees and recommendations for internal governance reforms that included new reporting protocols and training programs.

Within two weeks of the discovery, Lauren provided the resulting full report  to US federal authorities, including the Securities and Exchange Commission and Department of Justice, accompanied by the documentary record.  (The company then went further: terminating operations in Argentina and conducting a worldwide review of compliance and training programs.)

For such efforts, the SEC’s enforcement authorities decided to give the company enormous credit and a mere slap on the wrist.  In a non-prosecution agreement, the SEC required Lauren to disgorge the $593,000 plus interest of $142,000. It did not require the company to make any additional changes in controls or governance machinery.

The DOJ was not content with such a modest federal response. Although it also refrained from imposing governance changes, the DOJ imposed a penalty of $882,000 and required the company to admit to specific allegations (detailed in 16-paragraphs of text).

No sizable corporation can assure that no crimes will be committed by its employees or agents. The best we can do is design governance, control systems and training programs to deter and detect. When a system shows leaks, corrective steps are warranted. Ideal steps are best determined by the corporation’s own management, as done here.

Government officials rarely know enough about corporate governance or culture to direct corrective steps.  Yet the proliferation of deferred prosecution agreements in the past few years has led them to do so expansively.

When the DOJ (and now the SEC) use resolution vehicles [non-prosecution agreements] that are not subject to one ounce of judicial scrutiny, this is not something to praise, it is something to lament.

When the DOJ and SEC take action against an entity (one of the world’s most admired companies according to this recent Fortune list) that had an isolated instance of conduct that likely did not even violate the FCPA as Congress intended, this is not something to praise, it is something to lament.

When the DOJ and SEC extract approximately $1.6 million from an entity that acted like a responsible corporate citizen upon learning of an issue, and then imposes annual government reporting obligations on that company, and otherwise “muzzles” the company, this is not something to praise, it is something to lament.

And of course, despite all this fabulous cooperation, it could just as easily have gone a very different way, as it has for so many others.  It’s nice to know I’m not the only one who questions the very expensive common wisdom of capitulation.

Not too many care about the fact that Dzhokhar Tsarnaev is a kid. Not too many will feel troubled that he was shot.  In fact, there are a great many of us who think that rubbing salt in his wound would have been an excellent way to both make him talk and pay him back, just a little for now, for the horrible crime he’s accused of.  After all, America is furious, and that changes everything.

The battle between a principled criminal justice system and whoever we hate the most at the moment rages every time a tragedy strikes.  But that’s the point.  The legal system doesn’t have much reason to seize the people we admire and respect, the ones we want to be treated well and whose rights we pray will be honored. Not that it doesn’t happen, but not often.

It’s by the treatment of Tsarnaev that the bar is set.  And it has just be set at 16 hours, but only by the fortuitous interference of a United States Magistrate Judge.  How many more hours is left to our imagination, but for that mettlesome judge.  Via Emily Bazelon at Slate :

According to the AP, Dzhokhar Tsarnaev answered questions for 16 hours before he was read the Miranda warning that he could remain silent and could ask for a lawyer. Once Tsarnaev was told that, he stopped talking. (So much for the idea that everyone has heard Miranda warnings so many times on TV that they have become an empty ritual.) The AP also reports that the investigators questioning him were “surprised when a magistrate judge and a representative from the U.S. Attorney’s office entered the hospital room.” The investigators “had planned to keep questioning him.”

Wow. That’s bad no matter your point of view.

But to show the distance we’ve traveled: No one delayed the Miranda warnings—or talked about enemy combatant status—for Timothy McVeigh, the Oklahoma City bomber, or Eric Rudolph, the Atlanta Olympics bomber. OK, that was before 9/11. But even in 2009 after the arrest of the attempted Christmas Day bomber, Umar Farouk Abdulmutallab, the FBI questioned Abdulmutallab for only 50 minutes before Mirandizing him.