Following on New York University Law School’s  announcement that one of the options for the third year of law school will be to specialize, Colorado lawprof Victor Fleischer picks up the ball and runs. At the New York Times Dealbook, where they just can’t get enough of the academic perspective, he writes:

Law firms are struggling with the new normal of a segmented industry. The new economics of the profession are marked by increased lateral mobility among partners, increasing numbers of nonequity partners, increased client scrutiny of fees and a decrease in the routine legal work that used to support the pyramid model. As a result, it is harder for law firms to devote nonbillable time to training entry-level associates. Law graduates are expected to arrive knowing more than just how to “think like a lawyer.” The tricky part for law schools is trying to figure out what, exactly, they need to know.

Having a rather typical academic background, a couple of clerkships and a brief stint in Biglaw, it’s not entirely clear how Fleischer came to have his finger on the pulse of the legal market, but his vision of law firms appears limited to the handful of big ones.  This matters when considering where he goes.

In my view, law schools should play matchmaker, guiding students toward specialties that are likely to endure. Big firm attorneys in some practice areas will continue to have a comparative advantage over low-cost attorneys, in-house lawyers and other professionals.

But since most lawyers aren’t worthy, they will fall by the wayside.

Few law students go into academia or become public defenders. But the more common narrative is for law students to arrive at law school with a vague notion of doing international or environmental law, then meander aimlessly around the curriculum. Eventually, realizing that gainful employment is probably a good idea, they find themselves in a job interview wondering what in the world a bond covenant is. At that point, offering an elective course in accounting and finance is too little, too late.

While Fleischer, despite his implicit elitist stance, advocates for more practical training for lawyers, though why learning accounting and finance in the last year is too little, too late, is never explained. Perhaps we shouldn’t question the professor. But he shifts effortlessly into the LL.M. model, and wonders:

Could the same approach work in other areas of law that demand specialized legal expertise, like securities law, banking law or patent law? The critical question is whether there is sufficient market demand to supply an adequate number of jobs with six-figure salaries.

Again, it’s unclear whether he’s advocating for specialization within the existing law school structure, or asking law students to double down with an LL.M. if they can’t find work as a generalist.  And finally, his implicit elitism becomes flagrant.

None of this solves the broader problem at nonelite schools: the supply of law graduates simply exceeds market demand. The median salary of law school graduates at many schools is about $50,000, while average debt load is now over $100,000. As specialization takes hold, the next logical step is to lobby the American Bar Association to make the J.D. a two-year degree, with an optional third year of specialization for schools where that makes sense.

Sadly, his conclusion isn’t without some merit.  The vast majority of law students graduating will never see Biglaw salaries.  If it makes you feel any better, even those who nailed Biglaw jobs over the past seven years will never be made equity partners, and even those who do may find their firms collapsing under their own weight, leaving them fighting clawbacks.  A bit of schadenfreude, but it won’t pay your bills.

Clients want to know that their lawyers are capable of handling their work.  Lawyers may say they are even if they can’t find their way to the courthouse without a map, but to admit otherwise is to starve.  Recognized specialization may work to help, both by preparing lawyers to practice and providing a means for clients to distinguish between the lawyer who has familiarity, if not experience, with a particular practice area and those who are blowing smoke.

But Fleischer omits a critical component of the transition from generalist to specialist, particularly if the point is to make law students practice-ready and client-safe.  Scholars can’t do it.  With rare exceptions, scholars are no more capable of finding the courthouse than the M&A associate. Scholars can’t teach how arraignments happen, or the risks of being  reasonably unready in a personal injury trial assignment part.  These are the realities that crush a lawyer’s soul, and a client’s dreams.

The legal academy is offering their remedy for the ailment they created by insularity and hubris,  And yet they do so without acknowledging that teaching the nuts and bolts of lawyering requires someone who knows the nuts and bolts of lawyering.  How many lawprofs can teach law students the finance of running a solo shop, given that they’ve never been near a solo shop lest it soil their suit?

I don’t fault Fleischer for not recognizing that he’s proffered only part of his own answer. He wouldn’t realize it, because his experience is so limited and his vision of the rest of the profession so distant.  But this is why the future of law can’t be left to academics to decide on their own, and why practicing lawyers, the ones in the trenches where these law students will likely end up when they get no Biglaw callbacks and graduation date is looming, need to become involved.

I’ll sit by the phone, just in case some nonelite law school calls to ask if I can teach a third year specialized course in the practice of law.  I don’t expect it to ring. 

Eugene Volokh argues that a well-written legal argument doesn’t merely have a logical persuasive effect, but creates what he calls an authoritative bubble.

Rightly or wrongly, something that seems to be a thoughtful written argument by a respectable professional tends to have more than just a logical persuasive effect — it also has a psychological effect. If the argument is well-crafted, the reader is inclined to credit not just the factually verifiable claims in the argument (whether about fact or about precedent), but the analogies and the speculation in that argument, too.

The reader, even a judge (who is therefore of higher status than the writer), is likely to subconsciously treat the argument as having some authority. This usually won’t let the author get away with total nonsense, or mischaracterization of the facts and the law (once that’s exposed). But when the argument involves judgment calls — is the case really that similar to that precedent? what are the practical effects of a ruling likely to be? — the reader will be inclined to be moved by the argument even beyond what the purely logical force of the argument justifies.

The more general argument is that poorly written briefs impair a lawyer’s “credibility,” which Eugene defines as dishonesty or factual accuracy.  My definition would be somewhat different, more along the lines of general believability and trustworthiness. I trust that a person knows what he talks about when he can write well about it.

Eugene’s bubble runs more along these lines, that the solid writer creates a psychological impression of authoritativeness on the subject of his writing, and is thus sufficiently trusted as an authority that he can both go further with his argument and his thoughts are accepted with lesser scrutiny. 

An unnamed, relative rookie judge responded to Eugene’s post with his views :

As a criminal law trial attorney I thought it advantageous to write in a way that made it easy for a judge to rule in my favor; succinct, good authority, concise arguments. I tried to make every submission under 7 pages. I can count on one hand in 28+ years as a trial attorney reading an opponent’s brief that impressed me or, as you put it, carried a sense of authority.

I had never thought about it in terms of, “authority,” but I think it’s an apt description. The citation to a statute or case was usually on track, but everything else seemed almost always to be the written counterpart to a Jackson Pollok painting. Terrible sentence structure, typos, misuse of punctuation, facts not incorporated effectively, hyperbole, the list goes on. Good, persuasive written arguments do carry an authoritativeness that, for me, equates to persuasiveness. And it often is an unconscious appreciation, you’re persuaded without understanding why.

As a judge, admittedly with only 20 months experience, I have yet to read anything that has impressed me. Some of it is just plain, well, garbage. For years judges in private conversations would extol the superiority of civil law attorneys to me but I have yet to see much in the way of praiseworthy writing there either.

Naturally, a reader smacked back from the safety of an anonymous internet comment,

Holy pretentiousness Batman! Do you have an ego or what.

This reaction, aside from ignoring the nature of what it means to sit as a judge, reflects perhaps the most dangerous threat to good writing, maybe even good lawyering. Yes, the judge’s thoughts, that he was a wonderful writer and every other lawyer in his 28 years of practice or has come before him in the past 20 months sucks, is outrageously arrogant. But he is now the judge. He now decides whether you win or lose. By definition, the effectiveness of every lawyer who comes before him is determined by his reaction to their authoritativeness, or lack thereof.

It takes a very long to time to fully appreciate this aspect of jurisprudence.  I can still recall Myres McDougal tell this to the class, and warning us not to get too wrapped up in the details as we wouldn’t come to appreciate it for many years. Just listen, he said. Some day, you will understand.  He was right, but it took a long time.

Self-assessment of the quality of our legal work is fraught with danger. The distinction between efficiency and effectiveness has been so horribly blurred that we have great difficulty realizing that our satisfaction with the sufficiency of our effort is utterly irrelevant. We pat ourselves on the back for a job well done and feel self-satisfied. Other than the fact we lost, we were great.  After all, didn’t our mother tell us to do our best, and that’s all anyone could ask of us? 

Mother was wrong. If our best is inadequate, we have two choices. Get better or get out. And the person who determines whether our best is inadequate is the judge, no matter how crazy, arrogant or wrong he may be.

Almost all lawyers in the first five to ten years of practice reject this notion without even realizing it. They glow with the confidence of youth, Certain that they not only know what they’re doing, but that they’re doing it well.  They know this because they’ve decided it about themselves, and to them, that’s the only bar they need to meet.

Somewhere about the tenth year of practice, most lawyers come to the realization that they aren’t nearly as brilliant as they thought. They don’t’ necessarily reach this epiphany willingly, but by reaching a point in life where one surveys one’s accomplishments and failures, and those with sufficient metacognitive abilities realize what they could have done better if they had only known.

Over the next 20 years (and I limit it to 20 as that’s as far as my experience stretches), you struggle to achieve the bubble of authoritativeness.  You will never be as confident as you were in those first ten years because you know too much. 

This is one of the reasons so many lawyers’ aspirations change from Clarence Darrow to survival, realizing that they weren’t before, and will never be, a great lawyer. Instead, they turn to making a living and, for the better of the bunch, not screwing up too badly.  They give up trying to be better.  It won’t happen.

As a group, lawyers have never lacked for unwarranted self-esteem. But if it’s worse now, since everybody’s a winner, then the earlier one reaches this epiphany, the better off everyone will be, whether as an effective lawyer or coming to the realization that you won’t be Clarence Darrow either.

As is my way, I deleted the first two emails I got from somebody who called herself Jennie Reedy.  Her gmail address was a typical giveaway, as opposed to someone who at least had an email that led back to the source.  Like many blawgers, I get about 20 of these “requests” a day, and just chuckle at the stupidity and ignore them.

Protip: The “guest post” scam is a common method of clown marketers to enable ignorant lawyers to manufacture an overnight presence on the internet. It doesn’t work, both because no legitimate blawger will post this crap (and it is invariably total, utter crap) and because every other incompetent buffoon marketer is telling their lawyer clients the same thing. 

But this Jennie Reedy was a persistent one. After ignoring her first email, a second arrived. Then a third. Now she caught my attention, not because I took a sudden interest in her “guest post” offer, but because she became annoying.  What was unusual about the first email was that it included an attachment of the proposed “guest post,” whereas most make the offer but don’t send anything.

So I took a look at what she (if, of course, she is even a “she,” since on the internet, nobody knows you’re a dog) sent me.  It was awful.  The post was entitled “Drunk Driving: 5 Common Misconceptions.” and it was just dumber than dirt.  But at the bottom of the post was the kicker.

Jennie is a long time San Diego criminal attorney . Away from the office she unwinds by baking pies, doing crossword puzzles and spending time with her three beloved teenage daughters.

After you’re done laughing at the things Jennie does to unwind, because as marketers explain, people want to know more about your personal life so they will like you better, note that Jennie says she’s a long time lawyer linking back to the website of Bradley Corbett , a 2007 graduate of Thomas Jefferson Law School who opened his own practice in 2011. He’s also an Eagle Scout.

I checked  the link at his website where I could “Meet [his]Team,” and found no one there by the name of Jennie Reedy.  I wondered if Bradley knew that someone was masquerading as a “long time” attorney related to his short time law firm, so I sent him an email.  Bradley responded that he “had no idea who that is.” Shocking. I then sent an email asking whether he had someone doing marketing for him, but received no reply.

So what are the chances that someone is roaming around the blawgosphere offering an incredibly stupid “guest post” linked to a lawyer’s website, claiming to be a lawyer, and you don’t know who she is? 

As my pal, Eric Turkewitz, made clear years ago, outsource your marketing and you outsource your ethics.  Does any lawyer really think it’s a good idea to have a marketer spamming the blawgosphere claiming to be a lawyer for your firm?

I have no idea whether Bradley Corbett is a good lawyer or not. Based on his website and activity at Avvo, he’s certainly not shy about marketing himself, but that doesn’t make him a bad lawyer. What it does, however, is give rise to a deep question about his judgment, that his desire to get business is more important than his reputation or integrity. 

And please note that I’m not picking on a new lawyer for trying to survive, but rather had this forced upon me by the tenacity of Jennie Reedy.  So don’t blame me for doing no more than the guest post spammer asked of me. I looked. I found. That’s how it works.  Had she not pushed the envelope, I would never have bothered with Bradley Corbett. I was almost inclined to post the “guest post” together with its link back to him just because it was so mind-numbingly stupid.

Is that really what you’re trying to accomplish when you manufacture a social media persona?

Robert Halter was a divorced father whose ex-wife had taken his daughters and moved away, leaving him without much contact. They eventually moved back to New York, and Halter was allowed to see his children on weekends. But what he found disturbed him.

[H]is relationship with his older [13-year-old] daughter was fraught with difficulties. He constantly argued with her about what he considered her unacceptable behavior and threatened to send her to a “brat camp” if she continued to disregard his admonitions.

Things didn’t improve,

Their contentious relationship lead [sic] to an incident in July 2006, when defendant sought police assistance to locate her since she had not returned to her mother’s home the night before. After the police picked her up at the home of a 16-year old boy, she and defendant had a heated telephone conversation. When the phone call ended, she informed her mother that her father had sexually abused her. The younger daughter later made a similar revelation, leading to defendant’s arrest.

That’s the backdrop to the Court of Appeals decision in People v. Halter, affirming the defendant’s conviction after a bench trial of first degree sexual abuse, second degree rape, criminal sexual act in the second degree and endangering the welfare of a child.  On appeal, the defendant argued that the court precluded his presenting a defense because of evidentiary rulings based on the rape shield law.

On appeal, defendant claims that he was deprived of a fair trial because several of the trial court’s evidentiary rulings prevented him from adequately establishing his older daughter’s motivation to fabricate the charges. In particular, he asserts that the trial judge erred in precluding (1) cross examination of the older daughter regarding the purportedly sexual nature of her relationship with the 16-year-old boy at whose home she was found; (2) cross-examination about her sexually provocative postings and photos from her MySpace account; and (3) evidence of her tendency to wear what defendant considered to be inappropriate clothing for her age. Defendant claims that this evidence was essential to explaining the increasing discord between himself and his daughter and that its exclusion did not allow him to present a complete explanation of his defense.

The majority of the Court affirmed the evidentiary rulings, noting that the rape shield law existed to prevent the admission of evidence, such as provocative dress or prior sexual contact, which had historically been used to fend off claims of rape, as this evidence “rarely elicits testimony relevant to the issues of the victim’s consent on credibility, but serves only to harass the alleged victim and confuse the jurors” (People v. Scott, 16 NY3d 589, 594 [2011].”

The Rape Shield Laws came about at a time when recognition that rape wasn’t about loose women looking like floozies giving up their right to refuse sex, but about a particular wrongful act, and the right of every woman, regardless of the height of their skirt, to say no.

But like so many rules that assume the mantle of “black letter,” there is a tendency to remember the rubric and forget the rationale. Rape shield laws pertain to consent, not credibility.  And in this case particularly, there was no claim by the defendant that his 13-year-old daughter consented to sex, even if that was legally possible, but that nothing sexual ever happened.  Rather, the child lied to rid herself of a father for whom she felt no love and who threatened her lifestyle.  This put her lifestyle in issue.

In dissent, Judge Eugene Piggot, who is not generally viewed as particularly friendly to the defense, recognized what the majority missed, that the Rape Shield Law was never intended to be “inelastic.”

[T]he statute provides that a trial court may determine, in its discretion, to admit evidence of a victim’s sexual conduct if it is “relevant and admissible in the interests of justice” (CPL § 60.42 [5]). It may do so “after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination”

The facts of the Halter case teed up the nightmare scenario, where a father was accused of molesting his daughter and there was no direct way to prove the negative, that it never happened, even though there was strong reason to believe that he was innocent.  Yet the trial court’s refusal to allow the defendant to use what little he had was dismissed with a cursory “it’s inadmissible.” Move along, defense.

The case against Halter was built solely on the testimony of his daughters, with no forensic evidence behind it. The basic “she said, he said,” scenario, coupled with the prejudice favoring a child and against an adult, favoring a female and against a male. While this doesn’t mean it couldn’t happen, it also doesn’t mean it did.

Also dissenting, Judge Robert Smith laid out the arguments militating against guilt, making a formidable presentation.  Most telling was this description:

The older complainant asserted, in substance, that on three occasions defendant attacked her sexually without warning. On two of the occasions, his alleged conduct in doing so seems to have been almost insanely risky: It took place in a room where several other people were asleep. The record shows that, as defendant well knew, the older complainant was not a meek or submissive child. What made him think she would not cry out, and awaken the others?

If a defendant argued that this could happen in some alternative case, there is little question that it would be viewed as “insanely risky” and rejected as a laughable position.  Yet, when it’s the prosecution’s claim, notwithstanding the burden of beyond a reasonable doubt, this “insanely risky” scenario is magically transformed into accepted fact, because the alternative would be to disbelieve a female child.  This just isn’t done anymore.

The point isn’t that rape shield laws are bad, or that we should return to the good old days where two independent witnesses were required to confirm a rape occurred.  Rather, we have gone so far off the deep end the other way that it’s nearly impossible, no matter how insane the contentions, to defend against the facile accusation of rape or sexual molestation.  While we certainly want to protect children from this, convicting the innocent protects no one. 

There is an excellent chance that the Court of Appeals affirmed the conviction of an innocent man. Statutes enacted to prevent the smearing of women for their dress or unrelated conduct has now crept so far into the law as to preclude a defendant from fighting false charges.  Are aficionados of an absolutist approach to the rape shield law pleased by this? Is any woman, any child, saved by the conviction of an innocent man?

H/T Don Thompson

Public perception aside, one of the most important traits of a judge is what we delightfully refer to as “judicial temperament.”  The ABA Standing Committee on the Federal Judiciacy  defines judicial temperament as

compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.

Nowhere in there does it say well-motivated righteous indignation as reflected by judicial anger.  But then, Vanderbilt lawprof Terry Maroney argues that it is  time for a change.  The law review article begins with very short sentence: Judges get angry.

There is no way to avoid the reality that judges are people, and as such suffer from the same frailties as the rest of us. Bias. Anger. Boredom. The aspiration of including judicial temperament as a criterion for the selection of judges is that they will suffer fewer frailties than most.  We may not be able to pick judges who are devoid of the ignoble traits of humanity, but we can try, right?

Legal culture, however, is of two minds about judicial anger. On the one hand, anger could be called the quintessentially judicial emotion. Humans (including judges) feel anger when we perceive that a rational agent has committed an unwarranted wrongdoing; that experience of anger generates a desire to affix blame and assign punishment, and facilitates actions necessary to carry out that desire. This coupling of judgment and action rather precisely describes one core function of the judge. Indeed, we may expect judges to act as society’s anger surrogates, so as to avoid vigilante action. We often rely on them to assign blame, frequently task them with assigning consequences, and always hope they will be motivated to perform these functions.

On the other hand, anger seems to pose a danger to the neutral, careful decisionmaking we also expect of judges. Anger is powerful, and its effects sometimes regrettable; consider the actions of a Florida judge who, “red faced and yelling,” left the bench to “physically intimidate” an assistant state attorney. Anger is the prototype for the traditional view of emotion—a view strongly reflected in legal theory—as a savage force that unseats rationality, distorts judgment, manifests in impulsive aggression, and imperils social bonds. Indeed, fear of such irrationality led Judge Richard A. Posner to declare that we ought to “beware . . . the angry judge!”

It’s unclear to me whose legal culture Maroney is referring to, but it’s surely not mine.  There is no aspect of “legal culture,” if that’s defined as what those of us engaged in the law desire, that seeks judges to be society’s avenging angels, the embodiment of blind rage.  While we ask judges to “affix blame and assign punishment,” we do so based on applying the law and achieving its legitimate goals.  What we do not do is ask judges to vent our collective spleen against those we despise.

Sure, the public always enjoys judicial rage, provided it meets with their approval.  If the public hates someone, they applaud the judge who hates them too and lets their hatred come across loud and clear. This judge becomes a public darling for expressing what people feel; it’s feel-good law for the benefit of those who enjoy watching those they despise “get what’s coming to them.”

But this flies in the face of what judicial temperament is all about.  And Maroney says that’s not only okay, and can’t be helped, but should be tapped for righteous causes.

Righteous judicial anger rests on accurate premises; is relevant; and reflects worthy beliefs and values.

Where we have traditionally sought to rise above personal anger, Maroney exalts it, provided it comports with “worthy beliefs and values,” which by definition are those that we agree with.

Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused. Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community.

It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency. By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.

Rarely has anyone suggested that the expression of a judge’s personal outrage “demonstrates judicial respect for the defendant.” Having stood beside more than one defendant being sentenced and subjected to judicial outrage, no one ever told me afterward how much he appreciated the judge’s moralistic rant because it reflected respect for his humanity.  In fact, it’s never been well-received in my experience.

There is no disputing Maroney’s premise that judges are people, and as people, suffer from an emotional bias in the performance of their role.  When they take off their robes, they no doubt have feelings just like the rest of us.

But when they put on their robe, they assume the responsibility of their position. They are no longer entitled to let their personal feelings intrude on the authority they have over others.  It’s not that it doesn’t happen, but that the goal is to prevent it from happening.  Maroney argues the opposite, that since it happens, we should embrace anger and encourage it to be used for socially desirable ends, which means the ends that we agree with.

The tyranny of the majority is always a popular thing, as it makes the villagers storming the courthouse with their torches and pitchforks feel validated.  The last thing we need is to relieve judges from their obligation to maintain judicial temperament and play to the angry mob.  Will the mob agree with the judge’s moral outrage and applaud her righteous indignation?  Probably.  This is precisely what we fight against.

H/T Doug Berman

As noted in the New York Law Journal, the Court of Appeals, by Judge Robert Smith, granted leave in People v. Thomas, a case in which the defendant was interrogated at length and ultimately confessed to depraved indifference murder of his baby. To obtain that confession, the police lied.

The case involves a defendant who was interrogated for more than nine hours, repeatedly lied to by police and eventually made an incriminating statement that led to his conviction for the murder of his baby. Thomas told police he threw the infant on a bed several times and inadvertently banged the baby’s head on a crib. He was convicted of depraved indifference murder and sentenced to 25 years to life in state prison.

On appeal, Thomas raises several issues, including an allegation that police induced him to make a false confession by telling him that his child was still alive and that doctors needed to know what had happened so they could save his life. The case is unusual in that police videotaped the entire interrogation, so the jurors and the panel that upheld the conviction were able to witness exactly what happened, a fact Smith seemed to find intriguing.

“It is not every day you get to review these sorts of things with a videotape,” Smith said.

And indeed, the video matters, as it will allow the court to see for itself how lies can be used to accomplish the only goal of interrogation. 

The grant of leave comes on the heels of a Second Department decision in   People v. Aveni,a case in which the police told the defendant his girlfriend would die unless he told them what he had done to her, and that he would face homicide charges if he let that happen.  Of course, the girlfriend was already dead from the heroin he injected into her.

The concern raised by Judge Smith in Thomas was primarily the inducement of false confessions,

Much of the argument over the leave application centered on whether the trial judge, Rensselaer County Judge Andrew Ceresia, properly refused to admit the testimony of Richard Ofshe, a social psychologist and professor emeritus at the University of California at Berkeley. Ofshe, who has testified in hundreds of cases around the country and a handful in New York, was expected to testify how psychological coercion can lead someone to falsely confess to a crime.

Ceresia, after a Frye hearing (see Frye v. United States, 293 F. 1013 [1923]), held that Ofshe’s theories have not gained “general acceptance in the scientific community,” and refused to allow him to testify for the defense.

Egan told Smith that Ceresia’s decision was discretionary, prompting Smith to ask, “How can science be discretionary?” and said it seems “crazy that the highest court in the state” should be precluded from reviewing the determination.

“There are false confessions,” Smith said. “They are more frequent that you would think. But there is not much science in why they happen… Here, it does not seem ridiculous that maybe this guy was induced to produce a false confession.”

Ofshe has led the scholarly fight against false confessions, and it hasn’t been an easy one. Certainly, no one wants a defendant to falsely confess and be convicted, because no one can argue that this serves any legitimate end. 

The solution is to contend that no confession is false, completely vitiating the problem.  And for most jurors, this works fine, since no one who hasn’t sat in a chair in a small, windowless room for 9 hours can conceive of falsely admitting to murder. 

But Judge Smith, thoughtfully, states that there is “little difference” between the two cases, one about the use of lies to overcome voluntariness and the other about the use of lies to extract a false confession, And this is crucial.  Judicial and public sympathy flows to the person who may be perceived as falsely confessing, while there is little concern about the person whose will is overcome, whose words come because of tricks designed to tease them, coerce them, compel them. 

Theoretically, a waiver of the 5th Amendment’s right to remain silent must be knowing, intelligent and voluntary.  I trust that law students are still taught about the  Christian Burial Speech of Brewer v. Williams, where the defendant’s assertion of his right to counsel was overcome by an appeal to religious conscience.  Yet, use of techniques artfully designed to overcome a knowing, intelligent and voluntary decision by a defendant, whether the Reid Technique or manipulative lies, has not merely been deemed lawful and acceptable, but necessary in obtaining the evidence needed to convict.

But for the fear of false confessions, the revelation of DNA that innocents are convicted upon them, and the work of academics like Ofshe, the likelihood of our ever getting off the path of police using lies and manipulation to obtain confessions was slim.  And as the argument before Judge Smith demonstrated, the prosecution and police remain firm in their belief that this is all voodoo nonsense, that this tool to secure convictions is critical if we’re to convict the bad guys.  Whether they admit to the existence of false confessions, they have no doubt that the benefits of obtaining confessions from the guilty by overcoming their will and constitutional rights is worth it.

Are these good lies or bad lies? Is it good that lying produces confessions from heinous criminals or bad that lying produces false confessions from people who can’t withstand the psychological pressure?  As Judge Smith notes, the distinction cannot lie with the outcome, since there is no way to distinguish the innocent who falsely confessed from the guilty at the time of the interrogation.  As the court has a videotape of the Thomas confession, it won’t have to rely on the cops’ characterization of their interrogation, which some might think to be a somewhat unreliable description of their own possible wrongdoing.

Leave in the Thomas case sets up a potentially huge issue, an acknowledgement that while lying by police may be enormously effective, it does so by undermining constitutional rights in the process.  The same effectiveness that provides confessions by the guilty provides confessions by the innocent, and without constitutional rights to protect both, the latter will suffer along with the former. This cannot be tolerated by our system.

There is one additional quote from Judge Smith that bears noting.

At Friday’s in-chambers argument, after considerable discussion on the issue, [defendant’s lawyer Jerome] Frost asked Smith: “Your honor, can you tell me what a depraved indifference murder is?”

Smith replied: “No, but I can cite some cases.”

Never have so few words damned the criminal justice system so well.  This is criminal law.

H/T Kathleen Casey

And even when the defendant is Gurstel Chargo, the collections firm being sued by disabled war vet, Michael Collier. Even when accuracy is obscured in a  /files/66432-58232/(201210_18)Doc7CollierAmendedComplaint_pdf.pdf”>Amended Complaint was filed in the case, and omitted the allegations from the  original complaint that the lawyer appearing for Gurstel Chargo in court, Edward O’Brien, made inappropriate statements to Collier in the parking lot.  Apparently, there was a misunderstanding about what was said, and the naming and shaming was similarly inappropriate as O’Brien did nothing wrong. 

For the sake of accuracy, the portion of the original post, including a photograph, suggesting otherwise has been deleted.  Just as bad lawyering deserves shame, it would be wrong to leave it online when it turns out not to be true.  And, although Parker didn’t ask for it, I apologize to Edward O’Brien for the shaming, even though it was based on the allegations in the complaint at the time, as he didn’t deserve it.

Moreover, my post quoted from Mark Bennett’s post, which has since been changed to characterize the garnished monies as “ungarnishable,” and since my quote is via Mark, I defer to his choice of language and make the same change.

Parker’s letter raises one additional point worthy of some additional commentary:

Mr. O’Brien acted professionally in all of his dealings with Mr. Collier and in the handling of this case. He did nothing more in this case than appear in court and agree, upon review of information that he had been provided for the first time that day, to characterize the garnished funds as exempt. Your blatantly false post has now immeasurably tarnished his professional reputation and caused him to receive explicit threats to his personal safety and security.

Similarly, your perpetuation of blatant falsehoods against Gurstel Chargo regarding the garnishment (which you incorrectly characterize as illegal) and the alleged phone call has resulted in threats being received against law firm staff.

This is where Parker goes a few steps over the line.  Notwithstanding the dubious claim of explicit threats, if Gurstel Chargo doesn’t want people to be angry with the firm and its staff, then maybe it ought to worry more about its conduct than about what anyone in the blawgosphere has to say about it.  As Bennett put it:

I doubt that I have that sort of influence; I hope that I don’t. I suspect that it would be more accurate to say that treating a disabled veteran badly has resulted in threats against law firm staff. Which is itself unfortunate, but not attributable to my little blog.

In the aftermath of my post on the ethics of lawyers deliberately concealing their law school graduation and bar admission dates, many of those engaged in concealment responded by arguing “what about lawyers who include their ‘wins’ on their websites, but not their losses?”

Aside from the obvious, that the analogy is irreparably flawed as wins/losses bears no similarity to the intentional omission of something as straightforward and factual as a date, the attempt to defend concealment by pointing to another problem hardly makes the former acceptable.  The fact that Joe is ugly doesn’t mean Sam is good looking, but illogical argument is hardly surprising from people inclined to conceal for the sake of marketing.

That said, the wins/losses point is independently worthy of discussion, and the impetus for my taking it on comes from some comments left at a post by  Ken at Popehat the other day.  Responding to issues surrounding spammy lawyer marketing websites, some  non-lawyers remarked that they would really appreciate it if lawyers would include their batting average to facilitate the legal retention decision.

The only thing I can really think of is to publish information on how people can find better lawyers, and encourage people in that line. Do lawyers keep records of wins and losses?

And

My ideal site would list, not just name, contact info, and “in good standing” (or not) but how long a lawyer has been practicing (in all states, not just the one whose bar association site this is), number and kinds of cases he’s tried, and win/loss record.

It’s understandable that non-lawyers would like to know about a lawyer’s batting average.  Just as we argue about why propensity evidence is simultaneously irrelevant, yet so terribly prejudicial, it’s completely understandable that people want something, anything, to hang their choice on.

And indeed, it’s a very effective marketing tool for lawyers to promote their glorious victories, even if they are required to include the caveat, in very small type elsewhere on the page, that past results are not a guarantee of future results. 

I recall a New York lawyer who included in his personal bio that he had won thousands of cases even before he was admitted to practice law. You can’t make this stuff up. What he neglected to mention was that his “wins” were pleas at arraignment when he was in the district attorney’s office, doing rookie stand-up work before he was admitted.  Were those the “wins” you had in mind?

One problem with promoting “wins” is definitional.  A full acquittal after trial is a “win,” no questions asked. But what of a conviction on one count in a 37 count indictment?  Win, right? What if it was the top count? Not so much of a win, then. 

The more important problem, and the one were “wins” become grossly misleading, is that not all cases are alike, and not all lawyers handle the same level of cases. There are lawyers who do a ton of low-level misdemeanor street cases, even a dozen marijuana pops a night, and they mostly plead out to an infraction. No effort required. But are these wins?  I guess, but hardly informative wins unless you happen to have the same case.

Then there are lawyers who handle major crimes like murders, or federal conspiracy cases with huge numbers of defendants and years of wiretaps. Their wins look entirely different. So do their losses. So does the fact that their clients make extremely difficult choices about whether they want to roll the dice at trial, and the lawyers must abide their clients’ choices. Win or loss? It’s not easy to say.

While potential clients want to know a lawyer’s batting average, its meaning is almost impossible for the client to discern.  No two cases are alike. No two clients are the same. The same outcome has entirely different meaning based on the details. The devil is always in the details. So the promotion of a “win” may just as well be deceptive spin as anything else. Yet it lures the potential clients in.

But for those inclined to promote their “wins,” then the same ethical concern arises that applies to concealment of dates as applies to concealment of “losses.” Making the choice of including the good stuff, then full and accurate disclosure compels you to include the bad as well. 

The problem is no lawyer wants to include on his website that he tried a case and lost. It just doesn’t bring in business, and that’s the whole point of marketing.  Some will argue that everyone knows that a lawyer doesn’t win every case, and so inclusion of losses isn’t necessary as a juxtaposition to wins.  What they are trying to do is let potential clients know they’ve got experience and have had successes, something many clients believe is impossible in our legal system. 

The argument has merit.  Aside from Gerry Spence, I’ve never heard of a lawyer who claims to have won every case, and I’m unaware of any client assuming that to be the case.  Yet, the recitation of glorious victories is so inherently misleading and flawed an indicator of a lawyer’s competence, and so powerful a marketing tool as to be likely to overcome the deliberative discretion of potential clients, that the wrong of half-truth promotion outweighs the assumption that no client could possibly be fooled.

While promoting “wins” is itself fraught with ethical problems, doing so without the factual counterbalance of losses renders the marketing scheme ethically disturbing. If you don’t want to admit that you lose, then don’t promote that you win. It’s not that hard to figure out.

And by the way, some of the best legal work I’ve ever done, and of which I am most proud, came in cases I lost.  That’s how it happens sometimes, that despite Herculean efforts and brilliant legal representation, we lose. There’s no way potential clients will ever be capable of factoring that into the batting average.






 

Newsday reports that only 44 out of approximately 1500 retired Long Island Rail Road employees “were accepted” into the United States Attorney’s amnesty program, requiring them to give up their disability benefits in exchange for not being prosecuted for fraudulent disability claims.

Only 44 Long Island Rail Road retirees have been accepted into an amnesty program offered by Manhattan federal prosecutors who claim that hundreds face the prospect of criminal charges for filing fraudulent disability claims.

The number — well short of the 1,500 that prosecutors believe may have submitted phony claims to the federal Railroad Retirement Board in a decade long scheme that allegedly could have cost the government $1 billion — was disclosed in a court filing Tuesday night.

This bit of information was offered by the government to show  that its threatening letter sent blindly to retirees wasn’t coercive.

But prosecutors, in their response Tuesday night, said the paltry number of participants shows the incentives are far from irresistible or intimidating.

“Demonstrating the absence of intimidation is the empirical fact that, to date, some 44 individuals have been accepted into the program,” the government wrote. “While this level of participation in the program will result in substantial savings to the RRB, it falls well short of the likely number of participants in the fraud.”

“Clearly,” prosecutors added, “the vast majority of the 1,500 . . . felt no threat or intimidation to bend to the allegedly ‘coercive’ force of the program.”

“Clearly” may be a bit of an overstatement.  “Overkill” may be a more accurate characterization.

The empirical fact is that the Southern District’s gambit didn’t get the result they expected, which was almost certainly more than 44 retirees. While I know no more about who took the bait than they do, my slightly educated guess is that they netted the weakest, most easily scared and, potentially, the most disabled, who were least inclined to risk any possibility of having to fight federal indictment or suffer potential incarceration. 

Sure, there may be some fraudsters in the mix, but the letter was designed to prey on the weak rather than the bad.  People engaged in fraud tend to be tougher than frightened, disabled workers. They aren’t as easy to bluff.

Missing from the government’s facile “empirical” analysis is the fact that the letter was so threatening, so coercive, so intimidating, that it sent retirees to lawyers who were less inclined to shake in their boots and counsel the comfort of giving up a disability pension that the law, whether you like the law or not, allows.  As one might expect, many retirees spoke with one another, spread the word, considered legal advice, and came to the realization that the government was beating its chest, but that they did nothing wrong.

As intimidating and coercive as the letter was, it gave rise to a countervailing force, a backlash, that bolstered the LIRR retirees decision to stand firm if they had done nothing wrong.  While innocence may not mean they won’t be subject to federal indictment and prosecution, particularly when the government’s attack is based only on the Railroad Retirement Board’s decision rather than any wrong done by any individual worker, and as every lawyer knows only too well, you can beat the rap but you can’t beat the ride, they decided not to collapse in the face of government might.

This isn’t to say that the currently indicted workers didn’t do wrong (or did, for that matter).  Certainly, the potential for workers to fraudulently claim disability existed, and anyone who did ought to be held accountable for it.  And there are likely more, hidden among the 1500, who deserve to be in the dock. And there may well be a few among the 44 who took the amnesty offer, along with the frightened and hurting.

And that’s the point: There may be individuals who have engaged in fraud, and any determination of wrongdoing must be based on individualized culpability, not a blanket letter sent to 1500 retirees.  Should the government determine that there is evidence to support the allegation that any individual has committed a crime, then prosecute that person.  But don’t tar a groups with a mass smear.

Most of all, had it not been for “overkill” in the government’s heavy-handed attempt to intimidate retirees, so many of the recipients wouldn’t have sought legal counsel.  And maybe even read a legal blog that suggested the wrongfulness of the government’s approach.

So no, the government’s assertion that its letter wasn’t intimidating isn’t well-founded. In fact, it’s sheer nonsense.  On the other hand, it was not irresistible, but only because there are lawyers out there who don’t quiver at the government’s might. 

Everybody loves empirical evidence, but what it means doesn’t necessarily comport with the government’s spin.  The letter was wrong. Terribly wrong. The letter was intimidating and coercive, and it netted the government 44 retirees who gave up their disability rather than face the ride.  The government should consider itself lucky that it doesn’t have to prove that any of them did anything wrong.

When New York Court of Appeals Chief Judge Jonathan Lippman decided that it was time to assert his rule-making authority by instituting a  50 hour pro bono requirement of applicants to admission to practice, he opened a door.  Jeffrey Kurzon has decided to go through that door.

Via Above the Law, Kurzon has  sent Judge Lippman a letter asking that he use his authority as chief judge to make a difference.

In the past few years, there has been a wide public debate about the number of lawyers practicing law throughout the country. Our concern is not with the quality of education, but rather the quantity of lawyers being produced each year who graduate with hundreds of thousands of dollars of debt at the expense of tax payers – and then have no way to pay such nonbankruptcy dischargeable debt back by practicing as lawyers.

While it is true that legal access for the poor is a concern, what is troubling is that recent law school graduates are graduating without jobs and with hundreds of thousands of dollars of debt. And so enticed by the dream of becoming a lawyer, what happens is that they become worse than poor; they become enslaved to a lifetime of debt.

Kurzon points to Thomas M. Cooley Law School as the poster boy of all that’s gone wrong under the control of the American Bar Association.

And thus the question is asked: when is enough enough?

Would the American Medical Association permit half of its recent graduates to graduate with no job or no way to payoff their loans?

Essentially, there is a systemic failure in the legal academy and we write this letter to ask that the Court establish a special task force to review the authority it has delegated to the ABA and make specific recommendations and force their enactment on the ABA on how to improve the legal education system in our country.

Think of the tag line, “Think Globally. Act Locally.”  We’ve grown inured to the control of the ABA, their requirements for accreditation and their choice as to how many law schools should be out there, raking in tuition, providing homes for scholars, cranking out young men and women who expect to practice law, or at least have a secure financial future as a lawyer.  Brian Tamanaha, in his book,  Failing Law Schools, offered the backstory of how the ABA came into power over law schools.  There was nothing magical about it.

That a problem exists isn’t in dispute, at least not among anyone to be taken seriously and who doesn’t have a huge paycheck in the race.  But while there are well-meaning folks trying to find a global solution, we can’t even get the stakeholders in the same room, no less engaged in any kind of meaningful discussion. 

Some, like the lawprofs, are holding symposiums amongst themselves. Others, like practitioners, are too busy scratching for their own business to be bothered.  And still others, like me, aren’t welcome in the talks because we neither represent Biglaw nor the Legal Academy, and those are the only players who matter.

By sending this letter to Judge Lippman, Jeffrey Kurzon has taken a new direction that has a great deal of merit.  If we can’t come up with a global solution, and the ABA, an insular community of lawyers who are deeply concerned with their own importance as Leaders of the Bar and protectors of the status quo, won’t deal with it during the timeframe of a life in being, then what’s left for the tens of thousand (yes, tens of thousands) of new lawyers being cranked out of law school with nowhere to go?  

Like Kurzon, I have no doubt that part of the solution lies in part with the closure of law schools.  Despite the progressive dream that more lawyers means lower cost legal services and greater availability to the poor and working classes, the numbers do not crunch.  They never had. They never will. It’s a flawed dream, and no theoretical band-aids are going to change it.

Lawyers need to earn enough money to pay for law school, to cover their lost opportunity costs, and to feed their families. Lawyers, no matter how deeply they feel the responsibility of their position, still need to eat, put a roof over their heads and occasionally drive a car. They can’t do this on the adoring appreciation of their clients alone.  And most have no interest in trying.

So if the ABA refuses to fix the problem they created, and continue to perpetuate, the big fix will remain out of reach.  Why, then, not shoot for the smaller fix? 

As Judge Lippman has taken the lead with the pro bono requirement for admission to practice, so too can he take the lead in putting an end to the ABA’s tyranny. He has the rule-making authority for admission, and is under no obligation to continue to recognize the ABA’s acceditation of law schools as being anything more than one voluntary association’s view of lawyer-life.  They won’t deal with the mess? Screw ’em. They aren’t the center of the legal universe, even though they think they are and we’ve let them be. 

Each year, more law students flip their tassels. Put aside their worthiness to be lawyers, as some will be great ones and others will suck, and we can’t tell who is who yet.  What we can tell is that many are walking away from law school to life as a slave to debt and a future of misery. We know this, and yet we allow it to happen.  Judge Lippman doesn’t have to let this happen in New York on his watch.

Jeffrey Kurzon is right, and if Judge Lippman forms a task force, I will volunteer to be on it.  I only hope it reports back before another  ten fifty thousand souls are buried in misery, but I will do my best to help Kurzon, and Judge Lippman, to see that doesn’t happen.