You would think it bad enough for a young lawyer to become the poster boy for incompetence and deception.  Not for Joseph Rakofsky, whose hubris similarly exceeds his grasp.  After getting slammed by, well, everyone, he’s thought long and hard.  Very long and hard.  And came up with a plan.  Rakofsky v. Internet.

The rote expectation of insipid lawyers is that by bringing suit, something will come of it if for no other reason than to avoid whatever minor annoyance even the most frivolous action brings.  Sometimes it works.  Not this time, however.  Rakofsky has sued 74 defendants, ranging from the Washington Post to the American Bar Association to a who’s who of the blawgosphere.  Plans are in the works for the biggest blawger party ever, to be held in New York as the venue of choice.

Blawgers who weren’t sued are now scrambling, feeling embarrassed for not having made the cut.  Not only do they not care about being named as defendants, but they don’t want to be left off the list.

Sadly, many of the named defendants will never get a chance to play.  The substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had Rakofsky’s lawyer done some homework, he would learn that New York’s long arm statute expressly excludes defamation.  The out-of-state defendants are not amenable to suit in New York.  Perhaps they will traverse the nation, even the continent since they’ve named Canadians as well, to vigorously pursue this action.  Perhaps not.

The first question that spread around the room was whether Rakofsky was pro se, as it was hard to imagine that any lawyer would take such a frivolous case.  The answer is that Rakofsky was represented by a lawyer named Richard Borzouye, who gives the same 14 Wall Street office address used by Rakofsky and operated by Regus.

Far too much is known about Rakofsky already, his claims of having “founded []his firm on a commitment to set the standard for criminal defense in New York City,” which would have flown better had he been admitted to practice law in New York, or his “extensive and intricate understanding of legal procedures and loopholes, as well as federal and state trial experience,” which would have made more sense if he had any trial experience. 

So eyes turned to Borzouye, wondering who would have taken on such a frivolous case and drafted such a ridiculous (and procedurally defective) complaint?  He appears to be licensed to practice law in New York, though the “bar code,” a phrase not typically used in New York (outside of a supermarket setting), doesn’t reflect his New York attorney registration number. 

Borzouye doesn’t have quite the extensive web presence that Rakofsky had, before he deleted as much as he could following his self-immolation, but his advertising  on CraigsList and in the  Pennysaver provides some insight.

I practice criminal law in New York and Federal Court (SDNY & EDNY), covering all 5 boroughs: Manhattan, Bronx, Brooklyn, Queens, Staten Island and Long Island & Westchester as well. I am a young, clever, head strong, courageous, hard-nosed warrior, bulldog, passionate, champion, no-nonsense, maverick Litigator who will never stop fighting for you and who knows how the system works. I am a Former 18-B Panel Attorney and I can handle all felonies & misdemeanors with the level of excellence that you deserve in State & Federal Court ranging from violent & capital crimes to White Collar, RICO (civil also), DWI, Fraud (mail, wire, bank), Theft (grand larceny, embezzlement, etc), Drugs/Narcotics, Gangs, Domestic Violence, Sex Crimes, Battery, Robbery, Burglary, Firearms & Weapons, Computer Crimes, Appeals, Probation Violations & Early Termination of Probation. If you or a loved one have been arrested, awaiting arraignment or currently being investigated, Call the Law Offices of RICHARD D. BORZOUYE`, ESQ., 24/7 at (212) 618-1469 at our Wall Street Headquarters during business hours (8:30 am-5:30 pm) or (917) 399-4949 afterwards. We’re right across the street from the New York Stock Exchange. All calls are held strictly confidential. I offer flexible payment plans at a fair hourly rate and I will ferociously defend you at all times. Hire an elite Wall Street Trial Attorney who will not be intimidated by overzealous prosecutors or tough judges, and nor should you. I’M ON YOUR SIDE!!! Representation for federal cases nationwide!

There’s no doubt in my mind that somebody, maybe a whole lot of somebodies, are going to burn me bad for doing what I’m about to do, but there’s a point to be made here and I can’t figure out a better way to make it then to pull down my drawers and show what I’ve got.  Whoever is going to scream that I’m bragging, bite me. If anything, this is proof of meaninglessness, even if its makes you feel underappreciated.

I’ve been pretty hard lately on legal marketers and SEO types who are hard-selling ways to crank up your numbers, drawing the unquantifiable inference that numbers of readers somehow translates into huge wealth and prestige as a lawyer.  I say it just ain’t so.  I’m told by the cheerleaders that I’m wrong, an idiot, a liar.  I’m called a “notorious asshole” by the marketers, who just can’t stand the fact that I keep saying bad things about them and their business. 

So here goes.  Yesterday was a fairly normal day around SJ, with three posts.  Here’s the top secret inside baseball stats from my team of crack of highly-paid accountants in the backroom.
 

An old friend of mine from the Bronx used to do some schtick where he told people he was ten feet tall: five feet of lawyer standing atop a five foot high pile of money.  I bet Joe Frank Garza knows exactly what he meant.

Joe Frank Garza, a former district attorney in South Texas, was sentenced Friday to 180 days in jails for using money seized from drug busts to boost his  pay and the pay of other employees in his office.

Garza was ordered to repay $2 million that he misappropriated. He earlier pleaded guilty to the crime.

You mean it wasn’t his to use however he wanted?  Well, that must have been embarrassing, and really paints slush funds in a negative light.

Asset forfeiture is the  sink hole of law enforcement.  Sure, it’s described sweetly as “taking the profit out of crime,” by seizing back those nasty ill-gotten gains of crime.  Who could possibly against that?  Of course, the devil (as usual) is in the details, where forfeiture is used as leverage to get people to walk away from baseless seizures upon pain of prosecution, or that probable cause is all that’s needed for the smiling officer to take whatever he can grab and walk away with.

The putative use for such swag is to bolster law enforcement efforts, to keep those mother-rapers and father-rapers from doing in the wimmenfolk.  Certainly we want to protect the wimminfolk, right?  Except where exactly the money goes is rarely known.  Heck, most of the time, no one even knows just how much money is held in those secret bank accounts.  Much as they would love to say, it would reveal their secret law enforcement methods to the bad guys, and we can’t have that.

So how did Joe Frank manage to take these seized funds and make himself incredibly handsome? 

Legislation is pending in Texas that would restrict law enforcement officers’ ability to use seized assets for their personal benefit. (Here’s a link to the bill.)

You see, if there is no law specifically prohibiting a prosecutor or sheriff from using the seized assets for, say, drinks for the boys, a smallish tank, paying off the bag men, how would anybody know it was wrong?  Seriously, isn’t this a mistake pretty much any prosecutor could make?

Yet Garza’s enjoyment of forfeited funds should not be seen as a condemnation of the system that both grabs assets from anybody who can’t fight back and puts it into the hands of the easily tempted.

But according to this report from the Department of Justice, asset forfeiture laws play a key part in fighting crime by “depriving criminals of the proceeds of illegal activity . . .and restoring property to victims.”

Fine purposes indeed.  So when you happen to spy the next ten foot tall prosecutor, remember that he’s keeping America safe, even if he does look damn good for a five foot tall lawyer.

If you only read the faux small law columns at Above the Law, you would assume that anyone dragging them into court would be because of murder by stupidity.  But the real beef, the only beef, is in revealing the sordid details of the law.  Whether judicial hotties or nasty lawyers, this is how Lat made his mark. 

As Lat went on to build his empire, his number 2, Elie Mystal, took up the slack.  The problem with slack, of course, is that it sometimes results in, well, mistakes. And apparently Elie made one. From Jeff Bercovici at Forbes :

Getting publicly accused of committing rape is bad enough. Getting publicly accused of committing multiple rapes is considerably worse. Is the difference between the first and the second worth $50 million?

That’s how much Chicago attorney Meanith Huon is seeking in damages from Above The Law, a legal-industry gossip blog, and its parent company, Breaking Media.

Fortunately for former Newark, New Jersey, AUSA cum media mogul Lat, also named as a defendant, it’s just chump change. 

At issue is a story published May 6, 2010 — the suit was filed exactly one year later to fall within the statute of limitations — titled “Rape Potpourri.”The author, Elie Mystal, linked to a story about Huon, who was arrested and charged with sexual assault and unlawful restraint after a woman accused him of picking her up under false pretenses — he allegedly told her he was recruiting models to do alcohol promotions — and groping her in a moving car.

If ever there was a lawyer story custom made for the lurid-junkies, this was it.  But that wasn’t good enough for Elie, who put to his his mad-internet skills.

“And this, people, is why God invented Google,” wrote Mystal. “Had the victim Googled Huon, she would have found stories like this.” Mystal then linked to two other articles, one about Huon being charged with sexual assault and another about him being charged with cyber-stalking.

In 8.2 seconds, Huon went from being model groper to super-creep.

What Mystal failed to make clear — apparently because he didn’t realize it — was that all three articles were about the same incident and victim.

Harvard. Harvard Law.  And he didn’t realize that all three articles were about the same “victim”?  Don’t they teach them anything about cite-checking?

And the obligatory net-net:  Meanith Huon was found not guilty of sexual assault.

I’m a regular reader and big fan of Above the Law, even though Lat and Elie think I hate it because I occasionally have unpleasant things to say about some of the mind-numblingly stupid stuff that gets posted.  Still, it gives me all the sordid details of lawyer-life I would never otherwise know about, and insight into the things that concern both Biglaw associate wannabes and those who pretend that they didn’t waste three years of their life by going to law school.  They don’t come here too often, so I would never know about them otherwise.

But when your media conglomerate is grounded in lurid stories of legal licentiousness. you really need to get your facts straight.  You just can’t have a blast calling lawyers serial rapists because it makes interesting copy.  One of the things that I’ve noted at ATL is the inability to distinguish between things that are fair game for snark, and really serious matters that should be the subject of trifles.  They tend to treat everything like it’s a big joke, and invariably a joke with some infantile sexual connotation.

Is it all funny as can be?  Not necessarily.  We can all enjoy a good laugh.  But grownups use their heads to know when to draw the line, when something is serious, hurtful and just not a good topic for humor.

Elie, I realize that the soul of ATL is all about making a joke out of anything sexual involving lawyers.  I get it, and I understand that you’re catering to a huge following of law-babies who are titillated by the knowledge that there are other lawyers who have it worse than they do.  I really do get it.

But raising allegations of sexual assault against a lawyer, just for the opportunity to crack funny, actually involves a real person.  If you have to turn it into fodder for the sexually frustrated, at least do the legwork to get it right.  Don’t smear lawyers, actually anyone, if you can’t be bothered with making sure that your info is at minimum reasonably accurate.

That said, this complaint is going nowhere.  There was no malice, just laziness.  Whether there was probable cause for the cops to arrest, and the prosecutors to try, these allegations against Huon is unclear.  Huon argued the sex was consensual, and  he’s suing the cops for going low in building their case against him:

Huon’s suit, filed in federal court in Chicago, alleges that the state’s attorney’s office put an illegal wiretap on his cell phone and submitted false affidavits to obtain a search warrant of his home computers.

The lawsuit charges false arrest, malicious prosecution, intentional infliction of emotional distress, false imprisonment, defamation, civil conspiracy, and violations of due process, among others.

Maybe Huon’s got the goods. Maybe not.  In the meantime, maybe Elie and Lat will consider the possibility that not everything that can be the target of their ridicule is worth pursuing, even if there is no liability.  Or, just hang around waiting for some judge to take the bench with his fly down and go to town on it.  Because really, isn’t this what the law is all about?

No, they don’t drive around campus in Eldorados with leopard-skin landau roofs and Playboy bunny rear windows.  They don’t walk the quad in orange velour suits, wide-brimmed hats and silver-tipped canes.  It’s not that they have “style” when they pimp.  Still, they pimp.

Over at  PrawfsBlawg, lawprof Eric Johnson faces an anonymous colleague who left a comment,

“I would appreciate it if Prawfs didn’t invite guest commentators who use this blog to pimp their work.”

First of all, let’s pick a slightly more neutral term: Self-promotion. Am I guilty of that? Yes. I think it’s fair to call what I was doing “engaging in a scholarly dialog,” but if you want to call it self-promotion, I won’t argue with that at all.

Short of a mea culpa, but a non-denial denial is better than nothing.  Frankly, I thought he looked way cooler when seen as a pimp, but that’s just me.  I tend to prefer straight talk over sanitized language, but not everyone sees it that way.

So, I engage in self-promotion.

Some people, when they self-promote on PrawfsBlawg, toss in an embarrassed aside, such as “forgive the shameless self promotion.” I’ve skipped those pleasantries. Perhaps that shows a lack of urbanity on my part. But I just see myself as a realist.

We live in a world of vigorous self-promotion. Tiger Woods wears a hat with a logo made out of his own initials. I mean, for crying out loud, if that’s okay, how can I have done wrong by mentioning my new article and linking to it?

I have no clue how far Johnson can drive a small, white, dimpled ball, but I’m betting it’s less than 300 yards, undermining his analogy from the start.  On top of that, he’s not in the business of selling hats, as if anyone would buy a golf hat with a stylized EJ on it.

That’s not me. I say: Comment on, AnonProf. Dan called your anonymous comment “snarky and craven.” I won’t. But I would call it ironic. You see, in our online world, millions of people, like me, are putting themselves out there with their blogs, homepages, Twitter, Facebook, online CVs, bio pages, and the like. If that’s a breakdown in civility, then, you’d have to admit, so too is the upwelling of anonymous potshots. Self-promotion and unsigned flaming are the ying-yang of the digital world. Now that I think about it, I suppose they bring one another into balance.

And then there’s the Slackoisie defense: I may be a pimp self-promoter, but anonymous attackers are ugly and dress funny.  If “unsigned flaming” is horrible, does that make self-promotion less troubling?

Yet, Eric Johnson shouldn’t have been so deeply wounded by the anonymous comment.  Not for the reasons he states, which would have gotten his client convicted before lunch, but because he’s just not a pimp.  The foundation of the complaint is misguided.

When a lawprof finds a subject to which he commits an enormous amount of time and $100,000 of  law students’ tuition loans (the stuff they thought was being spent on their education), it’s because he takes a sincere scholarly interest in the subject, and believes others will as well.  Having done so, produced article and submitted it to a law review, the place where ideas go to die, there is a burning sensation in his head to engage his colleagues about his efforts.  Guys, I have this really cool idea and did a whole bunch of work on it; whadda you think?

The lawprof isn’t playing the five year old on the high diving board, screaming, Mommy, look at me.  He’s asking his friends if they want to come out and play.  He’s asking his friends if they think he dresses funny.  He’s asking the girl of his dreams whether she will give him a whirl on the dance floor.  And, in a benign, sanitized way, the chick may tell him to take a hike.

Writing about the object of scholarly effort isn’t self-promotion at all, even though some may choose to call it mean names.  It’s an invitation for peer review, both positive and negative, in this new-fangled medium that allows for real-time discussion or real-time ideas.  If there’s a flaw in the process at all, it’s that lawprofs continue to push out scholarly work for law reviews rather than blawg posts at all, but tradition (and grasping at tenure) is hard to break.

In the comments to this post, Orin Kerr, snarky and craven aficionado that he is, makes a point:

This comment thread reminds me of a fantastic website that I urge you to visit.

Posted by: Orin Kerr | May 9, 2011 4:02:57 PM

Now that, dear lawprofs, is the way to pimp. And Kerr ought to know, as Orin’s wheels show.



Many use blogs to flawg their self-importance, mostly devoid of substance and without a shred of shame.  Self-promotion on the internet is rampant, hyping things unworthy of attention, manufacturing descriptions that exaggerate value and importance, deceiving. 

Posting about one’s scholarship on a blawg, on the other hand, is offering a subject of sincere interest by a writer to others for discussion, whether positive or negative.  This is the highest and best use of the blawgosphere, to engage in thoughtful conversation with one’s peers about things that matter, at least to the writer. 

Doesn’t interest any particular reader?  That’s always going to be the case. Not every reader is going to share the writer’s interests.  Not everybody likes chocolate either.  That’s cool.  Nobody forces anyone to read stuff that bores them.  But similarly, readers get no vote on what interests the writer, and the when the writer has the keys to the blogging kingdom, then it’s his call as to what he finds sufficiently interesting to write about.  The blawgosphere is not a democracy.  It is, however, a place for peer review.  And that’s exactly how it should be.

Sorry, Eric Johnson, you are no pimp.  Write on, brother.

Ellen Beth Wachs is out of jail for now, but she’s been ordered to stay away from the neighbor boy, a ten year old who enjoys hoops with his dad.  He has sensitive ears.

From Fox in Tampa Bay :

A judge in Bartow decided to release Ellen Beth Wachs, an outspoken atheist, who has been in jail since Sunday.

She was arrested after an incident involving her neighbor’s 10-year-old son, and charged with simulation of a sexual act in the presence of a child.

Wachs was annoyed at the sound of the kid playing basketball early Sunday morning, and told him to knock it off.

He did stop, but a few minutes later, began shooting hoops with his father.

Detectives say Wachs began making loud noises of a sexual nature.

Before addressing the obvious, this bears noting:

“He is very fearful of even going outside after that happened,” said Otto Lehman in court on Friday. Lehman is the boy’s dad.

Well, that’s certainly credible, Otto.  You can raise the nightmares that will haunt him for decades when you bring the civil suit.  In any event, this case must be tried, if for no other reason than for the following exchange.

Prosecutor:  And what did you hear?

Otto: Sounds of a sexual nature.

Defense: Objection, conclusory.

Court: Sustained. Come on, prosecutor. You know what you’ve got to do.

Prosecutor: But judge…

Court: Sustained. It’s up to you.

Prosecutor: Mr. Lehman, can you tell the jury what sounds you heard?

Otto: Oooh. Aaaah. Oh, ahhhh, ooooh.

Defense: Let the record reflect that the witness is grabbing his left breast with his right hand, as his left hand is extended to a place on his body that cannot be seen below the rail of the jury box.

Court:  Will the witness please open his eyes and stop contorting his face.  Eewww.

Defense: Move to strike this testimony, your honor, as the prosecution has failed to lay a foundation for the witness sexual experience to distinguish “sex sounds” from, say, a decent meal.

Prosecutor:  But your honor…

Court: I’m gonna be sick.

Otto:  When I first played seven minutes in heaven with Hilda when we were twelve,..

Tell me that wouldn’t be worth it?

Wachs is charged with verbally simulating sex in front of a child. She’s not a favorite resident in Bartow, after she challenged the Polk sheriff for taking the basketball hoops intended for the local jail and giving them to the local churches instead.  Darn atheist.

But even if Wachs emitted sounds that would make Meg Ryan blush, is that a crime?  Consider the ramifications for cheaply built apartment buildings and hot bed motels.

Use what you got.  The  twinkie defense may not be much, but when there’s nothing else available to explain an aberrational killing, go for it.  Sure, people will make fun of you, ridicule your strategy, make you the poster boy for legal insanity, but what’s the alternative?

There is  some evidence that the “gay panic” defense was first attempted in 1987, when Joseph Mitchell Parsons, the Rainbow Warrior, claimed that he murdered Richard Lynn Ernest because of the shock caused by the latter’s homosexual advance.  It didn’t go well for Parsons, who was executed in 1999.

Then there was the Jonathan Schmitz, who killed his buddy Scott Amedure after the revelation on the Jenny Jones Show that the latter had the hots for the former.  That didn’t work out too well either.

Yet, the “gay panic” defense rears its fabulous head again, this time raised by former Times Square billboard model Ray Armstrong who strangled his long-time friend, Anthony Williams.  Strangulation is a particularly brutal, personal, way to kill a person.

Defense attorney Joseph Canuso said a defense psychiatrist had determined that at the time of the killing, Armstrong had a panic attack that rendered him “incapable of forming the specific intent to kill” and that the panic attack had been brought on by Williams’ “attempt to have sexual relations” with Armstrong.

Although it has no specific definition, the gay-panic defense typically rests on a defendant’s being so shocked by sexual advances from someone of the same gender that he assaults or kills the person. Canuso did not use the term “gay panic” in his arguments.

Is it possible that Armstrong was gripped by momentary psychosis, caused by a homosexual advance?  Sure. Why not?  When it comes to the strange stuff that goes on in a person’s mind, who is to say that it doesn’t happen.  The possibilities for bad things to happen in people’s heads seems endless.  But that doesn’t address whether a person’s panic at the homosexual advance of another constitutes a defense to putting one’s hands around a neck and squeezing.  Squeezing.  Squeezing.

The “gay panic” defense hasn’t always failed.  Joseph Biedermann was acquitted in Illinois for fatally stabbing Michael Hauser 61 times.  Of course, stabbing a person 61 times is an awful lot of time.  Far more than needed to kill someone (assuming mediocre aim), it reflects something awfully bad happening in the mind of the guy with the knife. 

One would suspect that somewhere during the course of the killing, the stabber would tire, take a breath, reflect on what he was doing, notice that things had gotten just a wee bit out of hand.  The claim was that Biedermann stabbed Hauser to stop his sexual advances.  It’s hard to imagine that Hauser hadn’t stopped of his own accord by, say, the 58th stab.  But Biedermann’s lawyer, Sam Adam, Jr., pulled off an acquittal, notably forcing the jury to decide between first degree murder and a walk. 

What makes the gay panic defense particularly troubling is that it smacks of validation of bias and hatred.  Hate gays? Well, here’s your chance to murder one and walk away.  Whether such hatred stems from latent homosexual feelings, societal prejudice, whatever, the idea that someone else’s sexual preference, even if acted upon (short of a rape), provides justification for killing them is anathema to most of us.  We won’t accept it as justification, and even if true, refuse to acknowledge its legitimacy.

Still, there is no question but that the defendant has a right to present a defense.  We may not like his defense, and may find it socially unacceptable, but the explanation for the conduct comes from the defendant, not our approval of the defendant’s conduct.  Does this right to defend extent to things we don’t want to accept as viable?  Assuming the defendant can prove, conclusively, that his conduct was the product of “gay panic,” then what?

If the court allows the defense to present any defense it can muster, even if that defense is an appeal to hatred and prejudice, it opens the door to more evils than one can imagine.  The religious fanatic can argue that the Bible says homosexuality is evil and most be wiped from the face of the earth.  The race-hater says black intermarriage is destroying our nation and he had to kill the black man with a white woman to save the America.  No matter how crazy or bizarre the claim, it would come down to whether the defendant believed it, and would entitle crazy people to act on their own crazy ideas.  The list of horribles is endless.

On the other hand, this may well be the cause of a killing, despite its intrinsic craziness, and should the decision of whether to convict or acquit fall to a jury rather than a judge who determines that nobody is going to argue in his courtroom that killing someone because of their sexual advance is acceptable?

While it may well be argued, let the defendant present any defense he chooses, and let the jury convict him for murder in five minutes.  Except, it may not happen quite that way.  It may be the jurors harbor similar bias, even if not to the same degree as the defendant.  It may be that the jurors find gay panic completely understandable, and the “choice” of being homosexual a risky, dangerous proposition.  The gay guy got what he deserved, in other words.  Don’t think any rational jury could think this way?  Don’t kid yourself.

Pennsylvania Judge Gwendolyn Bright will decide in advance of Armstrong’s trial whether she will allow him to argue that his killing of Michael Hauser was caused by gay panic, and thus that it constitutes a defense to murder.  Whether he ate a twinkie before the killing is not as yet known.

H/T Bad Lawyer

It’s a blessing and a curse, technology.  The trick is figuring out which is which, but when there is money to be saved, process to be expedited, it tends to blind us to the downside, or at least make the problems sufficiently palatable that we will pretend they aren’t that bad.

Doug Berman at  Sentencing Law & Policy posts about an AP article in the  San Francisco Chronicle addressing the use of video court appearance.

George Villanueva, charged with first-degree murder in the death of an NYPD officer, will not leave jail for months of pretrial hearings.  Instead, he’ll be beamed into the courtroom via video as lawyers discuss his case in front of the judge.

Villanueva’s case is part of a surge in court appearances done by video in New York and around the country, as cash-strapped communities look for ways to boost efficiency and cut costs. The tools are used in courts large and small, and the savings for some are staggering: $30 million in Pennsylvania so far, $600,000 in Georgia, and $50,000 per year in transportation costs in Ohio….

That’s good money.  More to the point, that’s good money that, if it doesn’t have to be spent, can be used elsewhere, or never taken.  If the use of video court appearances makes the physical presence of defendants in court unnecessary, then it’s a tech blessing.  So is it?

Advocates say the virtual hearing is easier on defendants, who don’t have to get up at 4 a.m. to be shuttled with other criminal suspects to court, only to wait hours standing and handcuffed for an appearance.  Judges say their cases are moving faster.  And civil liberties groups say the practice raises no red flags.

It’s certainly true that incarcerated defendants hate that they have to get up in the middle of the night to make court appearances.  The process is a huge burden.  And the rather pathetic reality is that most court appearances in criminal cases are utterly pointless and routine, often to submit a paper, learn that nothing is going to happen and set the matter for its next court date.  This can go on for a year.  Years, even.

So good thing all around?  “Civil liberties groups,” whoever that is, say video court appearances are cool with them.  End of story?  Not entirely.

Two things immediately jump out.  First, while most appearances in court are nothing more than a huge time waster, where nothing happens of any utility and serves to do nothing more than waste half a lawyer’s day and a well-pressed shirt, sometimes a critical moment emerges, unanticipated, whether because of a plea offer, a missing witness, an inadvertent assertion by a prosecutor, who knows.  These are the moments a defendant lawyer lives for, jumps on, exploits when the opportunity presents itself.  Except, it often requires a private whisper of approval by a client to act.  Just a head turned sideways, a hand on an arm exerting unusual pressure, a knowing look in the eyes of a frightened man.

The defendant is one the big screen TV looming over the well?  Kiss that moment between lawyer and client good-bye.  Would the defendant trade sleeping late for seizing the opportunity to win his case?  I suspect he would, but there would be no way to know what day, what appearance, an opportunity will reveal itself.  And so it would be lost.

More common to the situation, however, is that incarcerated defendants want to see their lawyer.  They are isolated in jail awaiting trial.  They hear others talk about their cases, lie through their teeth about how great they’re doing (never recognizing that they are still sitting in jail as they crow about their legal finesse), and grow depressed and fearful that their life isn’t doing nearly as well.  They become angry and paranoid,  They need contact and information.  They need to speak with their lawyer.

Granted, even incarcerated defendants should have a regular and ongoing opportunity to communicate with their lawyer.  Face to face meetings, papers handed back and forth, are deserved by defendants in jumpsuits as well as those in the office.  But it often doesn’t happen, as time is scarce, jail visits suck up an enormous amount of time (the waiting to get in, and then to have the client brought to the visiting room, can take hours) and there is always other work to be done.  And when there is nothing to discuss, as is far more often the case than defendants want to hear, it’s hard to justify a day lost to handholding when there are lives to be saved. Just not that defendant’s life.

Court appearances take up the slack.  Defendants get the chance to see that their lawyer is still breathing, knows their name, cares.  The defendant needs to know that he’s not forgotten. He needs to know he’s not alone. He needs to look into his lawyer’s eyes and see that there’s something burning in there.  Take away these meetings and the defendant is left to wonder in the darkness of his cell whether anyone in the world is watching out for him.

Does this make video court appearances a sufficient problem to raise serious concerns?  That’s hard to say, and likely varies from case to case.  If the defendant has sufficient access to his lawyer, then the need for a face to face in court is lessened.  If the technology allows for private discussion, then perhaps it can compensate somewhat for the inability to get instantaneous feedback when opportunity arises.  It’s not the same, but it’s something.

And if the defendant isn’t going to be physically present in court, I can’t help but wonder why the lawyer needs to sit on a bench for an hour to adjourn a case either.  While this won’t save the state any money, it could do wonders for the lawyer’s time and wallet. 

The point isn’t to reject, knee-jerk, the use of technology for all purposes, but rather to recognize that there are things being lost in the process, and consider the trade-off.  There is much to commend video court appearances, but they are not without issues, no matter what red flags civil liberties groups don’t see.

Through acknowledgement that it might fall short of a panacea, maybe the problems can be addressed and accommodated, and just maybe the use of technology can be tweaked so avoid, or at least diminish, the downside of appearing in court by video.

The call began with an unusual question:  What can you do for me?

This might be a perfectly appropriate question for many calls, say to plumbers or car dealers, sellers of small electronic appliances.  But as an opening gambit in a call to a criminal defense lawyer, it was so terribly wrong as to be jarring.

The change is upon us.  The television commercials, the phonebook advertisements, the marketing blogs, have made their existence felt.  They are changing the nature of the practice of law.  They are turning clients into consumers.  And those who once were clients think they’re becoming savvy consumers.  The  internet tells them how to do so.

I thought for a second how to respond?  A free dessert with their entree?  A buy one, get one free deal?  Maybe new and improved lawyering? 

What the called was really asking was obvious.  What would I guarantee?  Would I put my word on the line by making the promise they wanted to hear?  Maybe offer to trade my fee for results?

The caller already had a lawyer, one who was willing to go meet him at the jail along with a few other lawyers.  There would be no fee for going, and no fee for the losers of the beauty pageant.  They would sit down in the windowless room and make their pitch.  He would ask each the same question, and see who would say the words he wanted to hear.  What can you do for me?

But the lawyer who won the tiara didn’t produce to his satisfaction guaranteed.  He was still in jail, despite having paid the lawyer to get him out. Now he wanted a new lawyer to satisfy his needs.  It’s not that he was unwilling to pay, but that he expected results.  What can you do for me?

His first lawyer was found on the internet, where a friend used Google to identify the top few contenders for the job.  It was a careful search, showing a great deal of web-smarts in making sure that the lawyers selected had the requisite experience in federal court.  She carefully parsed each website to see that it contained the words, “experienced in federal criminal defense.”  She knew enough to ask how many such cases the lawyer had done like the one at issue, and carefully wrote down the number beside each lawyer’s name.

I was asked the question as well.  I said, “beats me.  A thousand?”  I never kept track.  Maybe I should have, but it never dawned on me thirty years ago that somebody would expect me to keep a list of every case I ever handled.  Some people kept a list of their trials, of their wins and losses.  I never did. Each case was sui generis to me, so it never occurred to me that I would be called upon to give my stats.

The idea worked well for Sy Syms, whose motto was “an educated consumer is our best customer.”  Of course, Sy was talking about a person buying clothing, who, at least by his theory, would appreciate the quality of his goods relative to the price.  It makes sense for someone selling clothing.

It makes less sense for lawyers.  It makes no sense for criminal defense lawyers.  Past performance is no guarantee of future results.  More importantly, we don’t sell results.  Or at least we didn’t until somebody got the brilliant idea that if he just started “suggesting” that by paying him money, the desired results were “no problem.”  The worst that could happen is that he got paid and the client was angry about not getting the results he paid for. 

The next lawyer, seeing that he just lost a fee to the guy who “suggested’ that he could produce results, realized that he had to one-up his competition or starve.  And so he did what he had to do.  When asked what he could do that the other lawyer couldn’t, he had his list prepared :

In his advertising materials, Respondent included false and misleading statements regarding:  his experience and his associates’ experience; the firm’s areas of practice and past case results; the assignment of cases among the attorneys in the firm; the firm’s reputation; the firm’s office locations; and the foreign language ability of the firm’s employees.

In terms of his experience, Respondent included a statement on his website and in his firm brochure that he had “worked in the legal environment for over twenty years.”  Although Respondent had worked as a clerk for a law firm while in college and law school, he had only actually practiced law for about seven years when these materials were disseminated.

Respondent also overstated the experience of his associates on his website.  At the time the website was published, the firm’s two associates had been admitted for less than one year, yet the website referred to the firm’s “numerous trained and experienced attorneys.”  The website also included phrases describing the firm’s attorneys as “thoroughly familiar with the local court system”, “highly skilled”, possessing “wide-ranging knowledge”, and having a “deep personal knowledge of the courts, judges, and other courthouse personnel.”

Regarding the firm’s areas of practice and the types of cases handled by the attorneys, Respondent’s website included a statement that “our attorneys handle all types of legal matters in state and federal court in South Carolina” when, in fact, that was not the case.  The website also stated that the firm represents clients “in every level of the South Carolina state court system”, which was not true.

Respondent’s website also stated that “[e]ach attorney with Coastal Law Firm focuses his or her practice exclusively on one area of the law [thus] each attorney is deeply familiar with the law and procedural issues related to their clients’ cases.”  However, Respondent listed at least twenty-seven distinct practice areas on his website even though only three attorneys (including himself) were employed with the firm.

Respondent’s website further stated that the firm had served clients in constitutional law, civil rights, ethics and professional responsibility, and toxic torts.  No lawyer in the firm had actually handled any matters in those areas; however, they were willing to accept such cases.

Additionally, Respondent’s website contained a page entitled “Consumer Protection and Products Liability Lawyer.”  The page claimed that the firm has “a history of winning [products liability] cases” and that it employs “defective products liability lawyers” who “understand how to deal with both corporations and insurance companies and have a history of winning cases for our clients.”  On another page on the website, Respondent stated that “At Coastal Law, our . . . product recall lawyers understand what is required in filing a medical injuries claim for manufacturer negligence in producing a hazardous drug or product leading to a dangerous product recall.  We can aggressively pursue your legal rights against negligent corporations that may have introduced a product that damaged your health.”  Neither Respondent nor any lawyer in his law firm had ever handled a products liability matter.

In terms of the firm’s office locations, some of Respondent’s telephone book advertisements stated that the firm had offices in Georgia and Florida.  At the time, Respondent had a referral arrangement with firms located in those states and had plans to merge his firm with another South Carolina lawyer, who had offices in Georgia and Florida.  Respondent’s firm, however, never actually operated offices in those states.

With respect to the foreign language ability of the firm’s employees, Respondent’s advertising materials included the phrase “We Speak Spanish” written in Spanish.  None of the lawyers in the firm spoke Spanish.  Only part of the time when these advertisements were published did the firm employ a staff member who spoke Spanish.  The inclusion of “We Speak Spanish” in Respondent’s advertising, particularly at times when no one in the office spoke Spanish, was misleading as it implied that the firm employed Spanish- speaking attorneys.

As to the firm’s reputation, Respondent’s website included a number of statements that could not be factually substantiated such as the firm “developed a reputation over the years for outstanding results” and the firm is “recognized as an established, experienced, and reputable local Myrtle Beach law firm.”  Although Respondent admitted at the hearing that the inclusion of this language was a “mistake” as his law firm had not been identified as a leading law firm or received special recognition, he claimed it was never his “intention to deceive.”

And the list went on.

In his advertising materials, Respondent improperly compared his law firm’s services to other law firms in ways that could not be factually substantiated with statements such as “best attorney available”, “most effective legal services”, and “best services possible.” Respondent acknowledged that it was inappropriate to make these comparisons to other lawyers.

And on.

Respondent admitted in his Answer that his firm brochure characterized the quality of his firm’s legal services for criminal defense clients as “tough criminal defense representation.”  He also admitted that his website characterized his firm’s attorneys as:  “highly skilled at obtaining bonds for their clients”; “dedicated attorneys who provide excellent legal advice”; “maintaining a high degree of professionalism” in real estate matters; and “intelligent”, “competent”, and “full service.”

And on.

Respondent’s website referred to the firm’s “expertise” in personal injury matters and the firm’s “expert nursing home litigation advisors.”  The website and firm brochures also stated that the firm “specializes in several areas of law.”  Respondent, however, admitted that no one in his firm was a certified specialist in any area of law.

And there is still more on the list.  There is no place to end, because whatever is on the list will be on the other guy’s list as well, and each tries to outdo the other to show why he, rather than the other guy, should be the lawyer to whom the money should flow.

What can you do for me?

My answer was brief.  I can defend you, nothing more.  I don’t even validate parking.

Is this the question you want to answer the next time the phone rings?  How low will you go to please the savvy consumer of legal services?

To underestimate the pervasiveness of grocery clerks with checklists controlling every facet of life, law included, is a terrible mistake.  Even the 10th Circuit Court of Appeals, masters of their domain when it comes to keeping drug dealers convicted and imprisoned, will jump as high as need be to appease the grocery clerk.

Consider what happened in United States v. Ortiz, a sweet little drug appeal where the court found that the prosecutor engaged in misconduct, your improper questioning to reveal that the defendant’s expert had testified on his behalf in his previous trial. Oops, did that reveal defendant’s propensity toward crime. Sorry, judge; it just slipped out. Let’s pretend it never happened, and we’re sure the jury will ignore it. 

First iteration of the decision, prosecutor committed misconduct, so the court found . . . wait for it . . . prosecutorial misconduct.  It seemed appropriate at the time.

But then came the grocery clerk.  Via the Tenth Circuit Blog :

U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub’d) – This amending of a prior decision provides an interesting insight into how the US Attorney’s Office works, or doesn’t. In the original decision, the 10th Circuit said an AUSA’s improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial.

Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder’s folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: “the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct.” Problem solved.

And the sheer quantity of drugs, with an estimated wholesale value of nearly $400,000, “might also, and legitimately, lead a jury to consider it less likely that the drugs would be transported without the driver’s knowledge.” Id. The evidence was more than sufficient to permit a rational jury to find that Ortiz knowingly transported the drugs found in his trailer.

This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. Although we are not convinced that any individual instance of the prosecutorial misconduct of which Higgins complains would, by itself, require reversal, we conclude that the cumulative effect of all of the misconduct does require reversal.