The still image that everyone must see.

And the video that goes with it.

Just as you feel the bile rising in your throat because another lawyer proclaims himself the best thing since sliced bread on the internet, something comes along to make you laugh.  Meet AppellateSquawk, another anonymous PD blawg that reminds us that misery loves company.

Who is this n00b?

Law was Squawk’s second choice in life. Our first choice was anything else.

Squawk attended the Acme School of Law & Refrigerator Repair and graduated number 398 in a class of 400 after calling the Property professor a horse’s ass. The professor predicted that our sense of outrage would make us a wonderful advocate and flunked us out.

Did he say refrigerator repair? I like him already.  And already, he’s been kicked off some of the most self-important blogs around.

The other day, the blogversation turned to Perry v. New Hampshire, which is about whether the DA can use a dodgy eyewitness identification so long as it wasn’t “police-arranged.” “Police-arranged” means the cops throw your client in handcuffs against the patrol car and tell the hysterical witness, “We’ve caught the scumbag.”

We had a few thoughts, having noticed that all those funky old Supreme Court cases from back in the ’70′s never said that the purpose of precluding suggestive i.d.’s is to slap the police on the wrist. They were worried about convicting the wrong person. Even before DNA exonerations and eyewitness experiments where nobody notices a gorilla walking into the classroom, at least some judges knew that one person can be mistaken for another pretty easily.

So if the i.d. is so unreliable that it risks getting the wrong person convicted, the DA shouldn’t be allowed to use it, no matter where it came from.

We thought we’d share this with the luminaries of SCOTUSblog, since nobody else had made this particular point. And darned if we didn’t get a prissy e-mail back saying they were giving our comment the heave-ho because “the author didn’t use their real name” [sic sic sic].

And he shares some similar ideas about the greater glory of harmless error.

Of all the professions claiming to be based on reason rather than revelation, only law makes a positive virtue of refusing to correct its own mistakes. We love it when an appellate decision recites a string of outrageous trial errors but finds them all harmless because the defendant was guilty anyway. As if only innocent people should get a fair trial.

What if doctors were like that? “Okay, so we cut off the wrong leg. But it’s clearly harmless because you’d be one-legged even if we’d cut off the right one.”

I know, I love unidexter jokes too!  With all this, he still has a soft spot for safety of those who have dedicated their lives to protecting and serving.

One of our appeals involved a cop who punched a man in the head for refusing to explain why he was walking through the lobby of his own building. Guess who was convicted of assault causing physical injury? The tenant, of course. His head had caused the cop to sprain his wrist.

So pity the poor NYPD cops getting hurt while arresting peaceful Occupy Wall St. demonstrators last night. Did they get blisters from wielding their clubs, or breathe their own pepper spray? Or get tangled up in those plastic handcuffs that they carry by the bundle in gleeful anticipation of making lots and lots of arrests, not to mention overtime pay?

Just when you think that there won’t be another new blawger with half a brain and a sense of humor, with nothing to sell and no marketing scheme up their sleeve, somebody comes along to bring a smile to your face and something worth the few minutes it takes to read. 

AppellateSquawk just destroyed my newly discovered world view that the blawgosphere is dead and we’re all doomed to watch Larry Bodine webinars.  That his failure to link to anybody and let us know he existed is a testament to his public defender-y lack of interest in self-promotion, selfish though it may be. 

Note to good blawgers: Would you be kind enough to let us know you exist without making us work so hard to find you? Trust me, the crap ones are on us hourly for a link exchange. Thank you. 

In any event, I welcome Squawk, now that Dennis Murphy told me he existed, to the blawgosphere, late perhaps but at least not never. I just hope he’s not a girl, or I’ve wasted a ton of male pronouns.

Some loose yet interesting stuff that I came across recently during a long stroll around the internet that never made it into a post of its own.

A Smashing Good Time

The Appellate Division,4th Department, held in  Franklin Corp v. Prahler that the owner of a collector car damaged by the negligence of another was no longer limited to the lesser of the reasonable cost of repairs or the reduction in market value.

Plaintiff was the owner of a 2000 Ford GT (hereafter, GT). On May 28, 2005, the GT was parked on the east side of Franklin Street in the City of Buffalo. According to plaintiff, the GT “is a rare collector’s sports car rapidly appreciating in value.” On the day in question, Justin M. Prahler (defendant) was driving a 1997 Jeep Cherokee and had consumed several alcoholic beverages. He was legally intoxicated when he struck and damaged the GT.

There’s nothing the owner of a collector car fears more than having his baby hit, whether by drunk, distracted SUV owner or loving fan who just wanted a closer look at 67 miles per hour.  But it’s still a car, and it needs to feel road beneath its tires.  Anytime you put a car on the road, the potential for disaster exists, though prohibitions against driving like a blithering fool are supposed to bring some small comfort.

For those unaware, the cost of insurance for a classic car is pennies compared to your minivan. That’s because classic car owners are actuarially recognized to take exceptional precautions to protect their vehicles.  But that doesn’t mean bad things won’t happen, not of their doing. So what happens when some collector car (say, a 1964 Austin Healey 3000 Mark III, Series II, BJ8) gets smashed?



Unlike a K-car, an exotic or classic car isn’t quite returned to its status quo ante by repair. Originality is highly prized, and a significant part of the intrinsic value of a classic car.  When some drunk smashes into it, the loss in value is far greater than the cost of repairs, and there’s no logic to precluding the plaintiff to recovering both the cost of repairs as well as the diminution of value.  About time a court recognized it.

Cowardice, The Next Big Thing In Legal Marketing

Is nothing sacred? For years,  Brian Tannebaum has made a nuisance of himself harping on the evils unethical behavior and deceptive legal marketing.  All this time, I thought he did it because he was deeply concerned about the profession and, well, he was inclined to be a douche.  Not so, according to divorce lawyer Lee Rosen.

If I had any guts, I’d say more about the bullshit that’s written about marketing, search engine optimization, virtual practices, unbundling, etc. because there is so much bullshit that it would fill a thousand railroad cars every month.

Having guts—being willing to tell the truth, even when it’s controversial—is a good marketing practice. It generates attention, which usually translates into increased business. You should try it because it works. Calling someone out is great marketing. It’s amazingly effective.

Exhibit  A: Brian Tannebaum,

So this has all been about increasing business by counter-marketing?  Not with an online picture like this:


(Image courtesy of Hair Club for Men and Lapel Pins-R-Us)

Rosen describes himself as “chickenshit” in comparison to Tannebaum, taking leave by saying, “Now, excuse me so I can head up to my room and see whether I can’t grow a pair.” Such humility, coming from a bald guy.

I Never Saw It Coming, Your Honor

Speaking of humility, few things are as humbling as being unable to get table on a Friday night at a decent restaurant or being sentenced, at least if you’re a hedge fund guy.  Both compel explanation, though one is easier than the other.  Via  Ashby Jones at the WSJ.

“Your Honor, I was not aware of the changes that were happening in me that blurred the line between right and wrong. They came slowly over several years. I allowed myself to slip into the world of relativism where the ends justified the means. Quite frankly, it’s very hard to imagine how I became that kind of person.” — Joseph “Chip” Skowron III, Friday, Nov. 18.

And yet, he used the information to dump stock in a biotech that was about to become a huge loser, you know? It’s really not that hard to imagine.

The above is sort of an elegant mea culpa, no? We thinks it’s likely the way that a lot of white-collar crooks get covered in mud, by wading into it very gently at first.

It always starts with a few million here, a few million there, and pretty soon we’re talking real money.  Every time a guy pleads to a corporate or financial crime, he’s stuck trying to come up with a way to explain why he isn’t a venal, malevolent criminal. Sometimes, there’s an actual reason. Most times, it’s just opportunity combined with self-interest multiplied by the belief that he’ll never get caught.

But it’s a damn fine statement at sentence, no doubt vetted through his lawyer.

Skowron was repped by Akin Gump’s James J. Benjamin, Jr., a former SDNY prosecutor.

And remember, white collar crooks, nobody knows how to prepare a better worded sentencing statement than a former SDNY prosecutor.  Credit where credit is due. Plus 60 months, $5 million in restitution and a $150k fine. Try shorting that.

Ralph Nader Wishes He Was Ben

The  Consumerist is one of those websites, almost a blawg, that actually managed to do something useful, making it stand apart from the rest of us who blathering on pointlessly.  The reason for this can be summed up in two words, “Ben” and “Popken,” the man who saved more consumers from misery than anyone else on the interwebz.

Via Bruce Carton at Legal Blog Watch, I learned that Ben is leaving the Consumerist, which has been on my blogroll for years, because, as it turns out, he hates people.

Here’s the part in these things where I’m supposed to tell you about the ground-exploding Web5.0 transdimensional hyperrealistic consumer empowerment matrix I’m starting. Except there isn’t one. I’m working on a few different ways to exploit my brain for profit. In the meantime, please stay in touch. I’m writing at benpopkenwrites.com, making funny stuff at benpopkenisjustkidding.com, and my personal landing page and catchall for my endeavors and adventures is iambenpopken.com.

Well, hate may be too strong a word, but apparently after six years of effectively humiliating corporate skels into doing what consumers paid them to do, he’s decided that it’s good to eat and he wants to make money.  My personal belief is that he’s preparing a run for the Republican nomination for President of the United States of America, expecting his campaign to be financed by his good friends at Comcast.  It could happen.

Great News for the Criminal Defense Lawyer doing Criminal Defense Law in Criminal Defense

There are few names bigger in the industry sucking earned fees out of servicing lawyers than Lexis/Nexis, so if Lexis says so, it has to be, right?  And combine the Lexis caché with the street cred of Larry Bodine, marketer extraordinaire whose lawyer consulting business was so fabulous that he traded it in for a spot on the corporate ladder, and you’ve got must-do for every lawyer, right?

The Keywords to Success: How to Generate More Business for Your Law Firm with Search Engine Optimization

That’s right, the joys of search engine optimization! As any fabulous legal marketer will tell you, use it or die.  So you think that the secret to wealth and prestige as a criminal defense lawyer lies in criminal defense lawyers using keywords as a criminal defense lawyer in criminal defense, whatever.

But this is no mere scuzzbucket SEO webinar to “demystify search engine optimization (SEO) and explore how you can strategically apply some of the latest SEO techniques to generate more clients.”  Oh no. That would be beneath Bodine’s dignity, not to mention that value added approach of Lexis.  Nope, this is a CLE for credit!  That’s right, your continuing legal education now includes demystifying SEO.

Earn CLE credits*

Wait a sec.  An asterisk?  What’s that all about?

*CLE is in the process of approval. LexisNexis is approved for telephonic/Webinar training on this topic in the following states: Alabama, Alaska, Arizona, California, Florida, Georgia, Kentucky, Minnesota, Missouri, Montana, New York┼, North Dakota, and Utah (self-study only).

┼Only experienced (having completed their first 32 hours of CLE) NY attorneys may take telephonic training for CLE. New York regulation requires that all CLE sessions must be conducted by a JD or an attorney in good standing.

Why is this part in light gray, kinda hard to read? Barely noticeable? So you mean it has yet to actually be approved for CLE credits.  Maybe because it’s absurd and outrageous and disgusting that anybody would think they deserve CLE credits for a webinar about search engine optimization?  But this is Lexis. This is Larry Bodine.  They would never lie to us about the value of SEO or its merit for continuing legal education. Never. That would be wrong.

Me and My Shadow

One time JAG turned dirty guy, Eric Mayer, who now goes by the handle  Unwashed Advocate (for reasons too disgusting to mention) has taken up making lists, in a therapeutic sort of way. 

 When I first decided to leave my comfy government job with a pension and regular paycheck, I did a lot of research about solo practice, the business of running a practice, and things that help my particular business model. I saw tons of articles and lists called “Everything you WANTED [emphasis added] to know about solo practice.” Sure, there was a lot I wanted to know. I wanted to hear that I’d make millions. I wanted to hear that it was easy. I wanted to hear that I’d get great cases and find myself arguing before a jury in minutes. I wanted to know that I’d have no problem finding success. I wanted to know that a rainbow would pop through the window every morning.

Nobody published that list. I exaggerate. Some did. Some people talked about aspects about practice that were challenging or undesirable, but they were drowned-out by the volumes of folks talking about solo practice with wide-eyed wonderment and zeal. Sunshine was regularly injected into my rectum.

The rectum obsession is disturbing, particularly in light of his new blawg name, but hardly the most disconcerting part of his post.  He proceeds to lay it on the line, with such notable gems as:

Those wonderful thoughts you had about answering your own phone evaporate once you answer your own phone. The world is full of tin-foil hat wearing conspiracy theorists. They’ve all been wronged by the government. They all have a highly complex story to share. They know how to trap someone on a phone better than a telemarketer. They’ve all been probed by aliens, and they love talking to lawyers. Now, you’re fresh meat.

And lest I not tie things together, the easiest way for the nutjobs to find your phone number is via the magic of SEO.  But as Eric delightfully points out, it not necessarily the worst thing in the world that your name gets passed around the tin foil hat society, since even your dog or cat couldn’t give a damn about your day.

You may eventually turn to Twitter for companionship. There, you’ll meet lawyers and lawyer-friendly people. You’ll share your funnies and thoughts, but, eventually, you realize something. Everyone there is pathetic, just like you. Like you, they just want to share their thoughts and funnies. They could care less about your thoughts and funnies. They only want you to read their thoughts and funnies. Like you, they sit at a computer, mumble incoherent thoughts, and chuckle at internet humor–all while farting their last highly-processed TV dinner. Calling Twitter one big circle jerk is an insult to circle jerks.

And this, amigos, is the reason why everyone, receding hairline or not, should own a classic car and take their chances on it getting smashed by some drunk.  It’s better than turning to twitter for companionship. Even if you can get CLE credit for doing so. 

If nothing else, you have to admire the fact that 7th Circuit Judge Richard Posner isn’t afraid to express an opinion, notwithstanding the fact that cases are likely to come before him that might seem to have predetermined outcomes.  Still, at least you know where you stand.

At a speech given this week in Chicago, Posner had plenty to say.

“When I was a kid, the notion that children had rights against schools was unknown,” the 72-year-old Posner said in a Nov. 11 speech in Chicago at the national conference of the Education Law Association. The Education Week blog School Law has details.

Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, said some school litigation is a result of “hypersensitive” reactions by students, and school administrators deserve more deference. “It seems to me judges ought to be very cautious before they try to displace the authority of the school administrators,” he said.

Posner said students need to “learn to roll with the punches,” according to the blog account. “Modern American kids, it seems to me, have excessive self-esteem,” Posner said. “They’re spoiled and coddled. Many of them have very aggressive parents.”

Are students “spoiled and coddled?” D’uh.  Are their parents “very aggressive?”  It certainly seems that way.  Do “modern American kids” have “excessive self-esteem?” Does the pope kiss imams?  Okay, bad example, but yes, they’ve got self-esteem up the wazoo, even though they often do nothing to justify it. 

Does this mean that judges should abdicate their responsibility to “displace the authority of school administrators?”  What’s one thing got to do with the other?

I haven’t been shy about calling millennials the “slackoisie,” or noting how unwarranted (which I believe is more precise than excessive) self-esteem (as opposed to self-respect) has screwed up a generation of students.  But the fact that students have their flaws provides no logical basis for undue deference to school administrators.  Judge Posner’s leap across this logical chasm is inexplicable.

Just as students have changed since Richard Posner was a boy, so too have school administrators, not to mention the world in which both exist.  With zero tolerance policies and regulations covering everything from the punctuation on snarky t-shirts to thoughts shared in dimly lit bedrooms on brightly lit computer screens, administrators (who prefer to be called educators despite their only seeing a classroom while drug dogs scour hallways during fake drills) have their finger in student conduct that had historically left to the discretion of parents and students.

Lots has changed since Posner’s day.  While students don’t get their knuckles smacked by yardsticks, they also don’t carry their father’s pocket knife.  Whereas a student isn’t likely to be taken behind the woodshed for misbehaving, or have his mouth washed out with soap for uttering a bad word, the chances of a parent overhearing students shouting obscenities about their teachers (except Miss Crabtree) down by the creek was slim to none.  Today, it can’t be missed on Facebook.

There are crazy things happening in schools these days, and students, spoiled and coddled though they may be, are paying a price for them that was never exacted before.  The intrusiveness of school administrators in the lives of students was just as inconceivable in Posner’s day as the notion that kids had rights. 

Perhaps the problem is that there was far less need to concern oneself with the rights of students when teachers and administrators weren’t imposing the scholastic death penalty for students behaving like the children they are.  In the name of protecting every delicate teacup from any possibility of a knee being scraped or ego bruised, we’ve regulated their every move, their every waking moment, and likely have rules about how they have to sleep as well.

No matter how excessive (or unwarranted, as I would put it) their self-esteem, this is no reason to ignore the wholly unrelated question of the propriety of the actions, and frequently mindless harm, caused by school administrators in the exercise of their similarly excessive (and I would say unwarranted) authority.  More importantly, Richard Posner is a judge, and if his confusion over spoiled children influences him in the performance of his duty to protect the rights of all, including spoiled children, then he has no business sitting in judgment.

School administrators are hardly some super-breed of government grocery clerks immune from doing wrong.  They are entitled to no more, and no less, deference than anyone in a position of authority over another person, regardless of whether students have aggressive parents or aggressive parents coddle their children.  The two issues are wholly independent, and there should be no judicial confusion on the subject.

In light of the issues presented by United States v. Jones, questioning the technological ability of the government to track movement through GPS, not to mention through cellphones, and the ubiquity of video cameras, the word “Orwellian” has become a mainstay of much discussion, and many court decisions.  While listening to oral argument in Jones, Orin Kerr  counted 5 references to Orwell’s 1984.

But as Marc DiGirolami notes, Big Brother’s ability to see and hear people at all times wasn’t the point.

I don’t believe that the term “Orwellian,” assuming it is used as a reference to 1984, is principally about government monitoring of private citizens.  It’s true that Winston Smith has to deal with the telescreen at home, and that there are hidden microphones everywhere to allow the government to spy.  I understand the allusion.  But I believe it to miss the point.

The real aim of this monitoring has to do with knowing and controlling what is in people’s minds, not only to prevent “thoughtcrime” from occurring but to eradicate the possibility of thoughtcrime altogether (this is the upshot of Smith’s experience in the Ministry of Love (Miniluv), where he comes to “love” Big Brother after a series of physical and mental tortures, culminating in Room 101).  The point is not merely, or even primarily, about watching people.  It is about controlling their minds and compelling abject adoration by dominating their thoughts.

Orwell was focused on language, not technology.  Newspeak.

Even more than this, 1984 is about the inexorable degradation of language by its close association with the state (“political” writing was not Orwell’s favorite).  I am not the first to believe that if the book were written today, its target might not have been the state, but linguistic degeneration through the influence of biz-speak or tech-speak, consultant-speak and text-speak. 

The appendix to 1984 is a discussion of how it is that language can be deliberately simplified and boiled down, and that it was perceived to be the great advance of Newspeak that, unlike all languages before it, it was continually shrinking.  Linguistic style, its complication and variety, is connected with human individuality and uniqueness of thought.  It is the aim of the state in 1984 to crush that individuality by removing all shades of meaning, all nuance, all manner of degree and particular flavor in vocabulary.  By this systematic linguistic impoverishment, people become more docile, as single and ever-contracting words come to signify two opposite meanings (doublethink).

By eliminating that aspect of language that allows people to adequately think about and communicate subversive ideas, Big Brother was able to eliminate the underlying ideas, which in turn allowed the domination of thought.

Marc’s point, that the degradation of language is happening all around us, and largely led not by government but by “biz-speak or tech-speak, consultant-speak and text-speak,” really strikes home.  Spend any time reading the crap that passes as content on the internet and, if you’re still capable, give just a bit of thought to the meaning of the words.  What we find with unacceptable frequency are strings of words that convey vague impressions with utterly no discernable meaning. 

This phenomenon isn’t limited to mommy blogs or tin-foil hat societies, but lawyers and law firms whose marketing copy reflects a wholesale absence of actual thought.  It’s become common in court decisions where rhetorical gymnastics are substituted for definitions and rationales. 

Indeed, in  the discussion of #Occupy Wall Street’s purpose, what’s become sadly clear is that people will cling to vague slogans, platitudes and notions that convey the impression of meaning when there’s nothing there.  Everyone can take their own personal comfort in the movement’s purpose, without having any capacity to know whether anyone else in the movement actually agrees with them or shares that purpose.  We embrace vaguely inspirational expressions, and don’t seem to realize that they don’t actually say anything.

And yes, it’s become a staple of political rhetoric, from the absurd acronyms used to warm us to overreaching laws (USA PATRIOT Act) to the acceptability of having TSA protectors insert their fingers into women’s vaginas “for our own protection.”

DiGirolami takes the argument one step beyond where I would, however, when he asserts:

“Orwellian” is an apt description of the new orthodoxy of “simple,” “plain,” “direct” written expression that passes under the Newspeaky term, “good writing,” or in legal circles, “effective legal writing.”  The next time somebody insists that you ought not use a word because it is too ornate, difficult, antique, complex, or unfamiliar, tell them that they are being Orwellian. 

The point Orwell made was that language needs to satisfy the ability to think and convey specific and nuanced meaning.  This doesn’t mean that it’s somehow more intellectual to use more complicated, prolix or faux sophisticated language when a simple, plain or direct word does the job.  The point of communication is to communicate, not show how many fancy words are in your repertoire.

Of course, when a particular word, even one rarely used and whose definition was forgotten immediately after taking the SATs, is the one that expresses precisely what you mean to say, then that’s the word to use. The idea is that we need to keep all the words in our arsenal available, as we can’t afford to lose the ability to express any idea, but, like force, use them only when needed and justified.

If we can think and convey ideas with precision through simple words, then that’s the way to go.  It’s the precision of our language, not the number of syllables, that matters.  And if you can’t explain in meaningful concrete terms what some string of words means, then chances are they mean nothing and you’re being treated like Winston Smith.  That’s Orwellian.

One of the things that drive people nuts is that others will find absolute certainty in “facts” because the internet said so.  It manifests in a variety of ways, from the media perpetuating a myth (such as the “sharpened screwdriver in the Bernie Goetz case) to facially credible blogs proffering bizarre interpretations of the law.

From  XKCD, a great cartoon that explains one way in which utter nonsense is transformed into internet reality.


Your kids use Wikipedia for their papers and reports. You use Wikipedia as a quick and dirty source. I use it too.  It’s not always wrong, but it’s not always right either.

The question is how many people either find validation for their mistakes on the internet, or innocently think they’ve learned some “true fact” because it says so somewhere on the internet?  This is what we have to contend with going forward, the digital version of a trusting nation that believes everything that appears in writing, no matter how wrong or ridiculous.  Don’t even think about the impact photoshop has on this problem, right Benneton?



H/T Steve Magas

The email spoke about mentoring, but it was really about networking.  The kid needed a job, and was asking anybody he could find whether they could help.  He found me, and he asked.  He wanted to have coffee or lunch with me so I could share my “insight.” 

It wasn’t the overt email, the one that said he was dying to work with me, and sent to 500 lawyers. But it had that sense of desperation to it. I’m a sucker for wanting to help young lawyers.  I responded that I didn’t think I had any “insight” worth sharing, but I would be happy to meet with him.  We set up a lunch to sit down and talk.

He came in a suit, and looked terrific. I came in khakis and a leather jacket, like a preppie ready to rumble.  The question in my mind was twofold, whether he was an entitled slacker, angry that he wasn’t getting the BMW right away, or someone who went to law school because he actually wanted to be a lawyer.  I had something to say no matter which way he went, but one was less pleasant than the other.

He turned out to be the real thing, and I like him.  He wanted to be a criminal defense lawyer, and he understood what that meant.  The problem, he explained, is that with the numbers of unemployed lawyers walking the streets like zombies,  The Legal Aid Society, the private institutional defenders, won’t even look at lawyers without experience.  Why take a raw recruit when they can get a seasoned veteran?

He explained that he was happy to work for free, to carry bags, to fetch coffee.  He would sit in the hallway, on the floor, next to the copy machine, if it would allow him to get some experience.  But even private criminal defense lawyers didn’t want him for free.

I explained that n00bs were a problem: they sucked up time and oxygen, and made lawyers feel bad.  The time it took to think up busy work to keep them occupied, to answer the incessant questions, to try to provide some work that would grow their ability to actually practice law, had to come from somewhere.  And if we just let them sit in the hallway counting their toes, we would feel awful about it.  Nobody wants to feel awful.

There were a few ideas about things he could do for himself, to “network” with real lawyers in a way that held some potential for him to both learn a bit about the practice of law and perhaps meet some people who were in a position to mentor him.  My practice wasn’t going to help him, and he wasn’t in a position to help my practice.  He wore a suit for nothing.  I felt bad about the waste of a clean shirt.

At the end of lunch, he graciously offered to pay the tab.  He should have, since he asked me to go to lunch.  And I told him to forget it, as there was no way I was going to let this nice kid buy me lunch. Don’t get any ideas that this means I’ll pay for your lunch too.  I’m no sucker.  But I was happy to buy this young lawyer a meal.

Afterward, I sent out some emails to some people I know about this young lawyer. Some were friends. Others, not so much. The responses were the same. There’s no place for a new lawyer to go. Nobody wants one.

The implications for the criminal defense bar are staggering.  Biglaw can get them anytime they want, dangling the BMW in front of them like some Pavlovian freak show.  Criminal defense doesn’t have it so easy, offering little more than the opportunity to get your butt kicked daily and be reminded that we’re about as loved and admired as an abandoned pitbull.  And not too many get rich defending people these days. 

Who will be the criminal defense lawyers ten years from now?  Not just the ones whose bread and butter are assigned indigent cases, but even the ones staffing the well for institutional defenders?  Their cadre of slightly experiences lawyers is bound to run dry eventually, and there will be no new group of lawyers to fill their spots.  Working your way up the ladder to someday land a position with an indigent defender isn’t exactly the path to wealth and prestige, and when there are hungry babies to feed, there’s a marked shift in priorities.

Not that I have an answer to this dilemma.  I understand that the money isn’t there for the Legal Aid Society or institutional defenders to field a farm team, to bring these young, enthusiastic, motivated n00bs aboard and prepare them to take over the heavy lifting of more experienced lawyers.  I realize that private lawyers barely have the business to keep themselves afloat, no less worry about student loan payments for the kids sitting in the hallways.

But it’s a problem, and it’s going to become a bigger problem over time.  And spending an hour with a fine young lawyer for whom I have no useful insight puts the problem front and center.  It does nothing to help him, and makes me feel particularly lousy about my inability to help.  It’s a miserable hour.  At least the food was good.

When the House Judiciary Committee held hearings on the Computer Fraud and Abuse Act, and whether common terms of service violations should give rise to criminality,  George Washington Law Professor Orin Kerr was asked to testify.  He was the perfect choice, having been deeply involved with the CFAA for years. Plus, he’s a lawprof and the CFAA is, well, a law.

But what if it was some sociology professor instead?  You know, some soft discipline, related only by tangential concern and whose views are, essentially, no more insightful than some arbitrary guy on the street?  Meh, you say. Who would possibly care?  Given the Academy’s latest infatuation with interdisciplinary approaches, reflecting the elevation of collaboration over relevant contribution, it’s likely that a lot of people would care. 

Take CNN, for example, who provided a bully pulpit to George Washington Professor Amitai Etzioni to opine about the constitutionality of GPS tracking in United States v. Jones, argued before the Supreme Court on November 8th.  His credentials aren’t exactly chopped liver:

Amitai Etzioni is a sociologist and professor of international relations at George Washington University and the author of several books, including “The Limits of Privacy.” He was a senior adviser to the Carter administration and has taught at Columbia and Harvard universities and the University of California, Berkeley.

The intense debate the case has already elicited among legal scholars, civil rights and libertarian activists, and those particularly concerned with public safety and national security is largely focused on the question: what would the Founding Fathers have said about the case? As I see it, at least equal weight should be accorded to the question: How well are our public authorities doing in their dealings with criminals? Who needs more tools and who should be denied access to cyber-age technologies if we are to keep a balance between our profound and essential commitments to privacy as well as our security?

Really? It’s not exactly clear that the legal world is obsessed with what the Founding Fathers thought about GPS, considering that it would have been pretty painful for the horse had they been attached.  But is there any rational basis to suggest that alternative to constitutional concerns is what makes law enforcement easier?  So a sociology academic says.

But Etzioni has some additional insight on the Constitution, and this is a great opportunity to get it out:

To argue that the preceding data show that the government should be given some more leeway is not a violation of the Constitution, but directly sanctioned by it. Unlike the First Amendment, which is worded in absolute terms — “Congress shall make NO law” — the Fourth Amendment bans only unreasonable searches. That is, it recognizes that there is a whole category of searches that are fully legitimate and violate no one’s rights.

As to what is reasonable, it obviously changes with the circumstances. Given that criminals can use freely all the new technologies — including of course GPS trackers, smartphones and spyware — it seems eminently reasonable that the police should also be able to use some of these, especially in public spaces, in which people have no expectation of privacy (or at least should not have one).

Bet you thought the 4th Amendment left it to neutral magistrates to determine whether a search is reasonable, but not according to sociology dogma, apparently. And need we even consider his assumption that the comparison of reasonableness is between the cops and criminals, because nobody would ever search and seize a non-criminal.  Do you get the sense that if someone posed that question to Etzioni, his reaction would be “why would they care, since they have nothing to hide?”

Etzioni’s screed is replete with dumb and dumber ideas about the law, but it’s hard to hold him accountable for being ridiculously ignorant.  After all, he’s not a lawyer. He’s not a lawprof. He’s a sociology professor.  What being a sociology professor has to do with getting a major news outlet to provide him with the ability to spew his opinion isn’t at all clear, but they put him on the soapbox and let him scream. 

The point isn’t that clueless people aren’t allowed to think they have an idea worth expressing, even though I’m not of the view that everyone is entitled to an opinion.  Sure, they may have one, but that doesn’t mean they have a basis for it.  The point is that someone at Cable News Network decided that the mere fact that Etzioni is a professor of something at George Washington University is a good enough reason to offer him the soap box.  He’s a scholar! Woo hoo! He must know stuff, so let’s give him some play.

From the perspective of somebody at CNN, who was told to go out and find somebody who would write something about United States v. Jones in support of the government’s position, any seemingly credible source would do.  If you’ve ever watched the media make sausage, you know how little they either know or care about the competencies and value of an opinion. They need to fill airtime and white space with someone who comes off to the public as somewhat credible. Beyond that, they couldn’t care less.  Sorry if you thought that call from GMA meant you were now a recognized national expert on something. Truth is, it just means the guy they really wanted didn’t answer the phone, so they went down the list until someone did. You won.

The problem is that the vast majority of the public won’t realize that someone with impressive credentials like Etzioni, who may be the smartest guy in town when it comes to sociology, doesn’t know squat about the law. The problem is that anyone who reads this nonsense will be stupider by the end than they were in the beginning. The problem is that he’s a professor, a scholar, an academic, and therefore has attributed credibility which means he must know what he’s talking about.

And if you think lawyers are media whores, never turning away a chance to get their made-for-radio puss on the screen, scholars are worse, even when the subject has nothing to do with their area of academic expertise.  And people pay attention, because he’s a scholar.

H/T Radley Balko

A discussion broke out on twitter yesterday after a twit about a conference that was too mind-numbingly stupid for even the most ardent of Apple lovers.  Under the heading of Learn New Technology or Lose Clients came this ripe offering:

A new seminar titled, “The iPad Lawyer: Real Secrets for Your iPad Success” shows lawyers how to effectively use the iPad in a legal environment.

From this, we talked about how the iPad was a great tool to watch Hulu, or even classic movies like the Godfather, while waiting for your case to be called.  There was no discussion of Angry Birds, but I feel confident that the same would hold true for playing the game while sitting on a hard, courtroom bench.  Aside from that, we had nothing.  It hardly seemed worthy of a seminar.

Sam Glover, honcho at  The Lawyerist and lover of things shiny, took issue.  While admitting that the iPad fell shy of vital equipment, Sam noted that ” it’s pretty useful for taking client files instead of lugging a laptop.”  It apparently didn’t occur to Sam that there was another alternative to iPads and laptop lugging.

I suggested that Sam might consider bringing actual files with him to court, just in case a judge asked for a document, or maybe if his adversary raised an argument that he could destroy with a document in his possession, pulled with a flourish from his file and handed up with verve.

Sam demurred:

I’m usually in federal court, which is paperless anyway. It’s easy enough to email a doc or display it on the ELMO.

In state court, I’ve been able to email docs I didn’t anticipate. Most judges have computers on the bench.

But he did recognize that his experience may not be universal.

My exp is limited to my cases, anyway. It’s never been a problem for me, but others may have run into problems.

This introduction led me to think of the 7 “P”s:  Proper prior preparation prevents piss poor performance.

When things go as anticipated, we all look like geniuses. We have what we need, things go according to plan and we walk away feeling as though we’ve handled the situation perfectly.  That’s easy.  Aren’t we wonderful?

But what we, as lawyers, must be capable of doing is handling the unanticipated, the surprise, the sand-bagging, with the same finesse and skill as that which we expected.  This is what distinguishes a skilled lawyer from a hack.  The hack can manage the routine.  A great lawyer can handle anything.

A while back, Mark Herrmann, in one of his Above the Law columns, made the point that old lawyers turn curmudgeonly because they’ve experienced all the things that can go wrong with a case, whereas new lawyers assume everything will go just fine because they have yet to experience the joy of having unanticipated disaster strike.  Old lawyers begin to think about potential problems before hand because it’s preferable to blowing something.  We know this because we’ve experienced it or seen it happen. It’s not pretty.

Sam’s reliance on his iPad in lieu of an actual file with actual papers isn’t at all novel, and for many newer lawyers, and even older ones who can’t find a healthy young lawyer to carry his briefcase for him, it explains their lack of upper body strength.  After all, files can be heavy and occasionally awkward.  They usually require a briefcase within which to carry them, and many newer lawyers have never come to feel devotion to a briefcase.  Like the wristwatch, these may become accoutrements of the dinosaur.

And Sam may never need to hand a document to a judge.  It may have something to do with his practice area, which I believe is consumer rights (an oxymoron, obviously), or just pure kismet that no unanticipated issue ever arises.  He may be able to get through his entire career without ever risking the possibility of a paper cut.  I truly hope he never suffers one, as they’re terribly painful.

But if the day arises that a judge unexpectedly asks him to hand up a document at a critical moment, his client’s fortune depending on it, with argument and controversy whirling around him and the immediacy of his ability to produce being the difference between success and failure, I wouldn’t want to be standing their empty handed, except for an iPad.

The 7 “P”s are worthy of your consideration, and could spell the difference between success and failure.  To paraphrase Ronald Reagan, hope for the best but prepare for the worst.

The United States Sentencing Commission issued an extensive  report that ripped that hated mandatory minimum sentences.  As described in a New York Times editorial :

A 645-page report from the United States Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe,” not “narrowly tailored to apply only to those offenders who warrant such punishment,” and not “applied consistently.” That is especially so for sentences of people convicted of drug-trafficking offenses, who make up more than 75 percent of those given federal mandatory minimum sentences.

Nothing warms my heart more than a official recognition of the obvious that took a mere 24 years. 

This is a powerful indictment from the commission, which has three Republicans and three Democrats and operates by consensus. The report shows that harsh mandatory minimums have contributed to the near tripling of federal prisoners in the last 20 years, reaching 208,000 in 2009 and putting federal prisons 37 percent over capacity.

Of course it put prisons over capacity. That was the point of the mandatory minimums, to allow politicians to prove to voters how tough they were on crime on the backs of every hated miscreant in the system and usurping the function and authority of judges, who couldn’t be trusted anyway since they have life tenure and don’t need to be re-elected. 

It’s not to criticize this report at all, but to wonder how it could have possibly taken all this time to figure out what the rest of us knew decades ago?  But as all people who screw up royally like to say, let bygones be bygones.  Let’s not hold anyone responsible for the hundreds of thousands of lives, plus all the family members, children and spouses, that suffered for mandatory minimums.  Let’s not demand that anyone be held accountable for the misery, since it was just a political decision, like so many truly bad political decisions, that seemed efficacious at the time. 

And, I can’t help but wonder, if the economy was stronger, whether maintaining mandatory minimums would continue to serve its very important purpose of demonstrating how tough our politicians can be in the name of protecting us from evil mommy drug mules whose children need to eat every day, even though it’s a huge and unjustifiable expense to the public that serves no purpose whatsoever.

With this report from the folks who are supposed to know best, if last, about the functioning of the federal criminal justice system, there is a real expectation that Congress will pay attention to the polls and rid of these mandatory minimums.  The New York Times thinks they should:

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

That’s great. Voters are much more concerned this election cycle with the economy than with the War on Drugs, so it’s the perfect time to toss out this bit of insanity, especially now that the politicians can blame it on the Sentencing Commission and won’t have to take any heat themselves should any constituent bark.

But what of the people in the gap, between the time this insanity began and the time Washington woke up and learned that they really shouldn’t screw with the lives of hundreds of thousands of people to win a handful of votes?  For the defendants whose sentences are served, tough luck.  They’ll never get those years back, the extra seven on a 121 month sentence when a 36 month sentence would have been more than sufficient.

The ones now serving their sentences will be throwaways too.  And the ones in the system now will have a gun pointed at their heads, the government doing everything in its power to flush out their pleas before any change in mandatory minimums can be made effective.  Given the astounding manpower and money that went into these cases that would have been run of the mill state court prosecutions in another lifetime, the government won’t be satisfied having them serve a few years when they had decades in mind.

Don’t be surprised when some pimply-faced lawprofs, whose sentencing sensibilities were developed during the guidelines years because they weren’t born in the olden days when judges actually exercised individualized discretion, start complaining about inconsistency and undue leniency.  After all, these scholars, whose only real-life experience consists of a couple of years clerking for federal judges where lawyers kissed their baby-powdered butts for fear they would wreak havoc with their client’s lives and gave them the impression that they are omnipotent and their opinions were deeply valued by all, never experienced a system where sentences that weren’t calculated in triple digit months were sufficient.

Undoing the craziness of the War on Drugs, the Tough on Crime politics, the insanity that infected our federal legal system, leaves plenty of dead bodies in its wake.  We lack the ability to raise the dead, to undo the damage inflicted on so many when our harshest impulses rules the criminal justice system, but at least we can remember that 24 years later, we finally came to the realization that this was one monumental screw up and not do it again.

And maybe, in the process of undoing the damage, someone in Washington will think about the people sitting in prison who, but for their policies, should be home with his children.  Explain to them why they had to suffer a ten year mandatory minimum, now seen for the ridiculously harsh and pointless mistake it was.