Coming so close on the heels of the introduction of the iPad, I barely caught my breath before the introduction of the new iPhone. I can’t say which version it is, since I don’t have one, never used one and couldn’t distinguish one version from the next if my life depended on it.  But that’s just me.  It appears that other people think it’s a marvel, even if Steve Jobs couldn’t get it to work.

I don’t have every new shiny toy for a very simple reason.  I don’t want to pay for every new shiny toy.  I don’t want to pay the ancillary costs for the service needed for every new shiny toy.  I work too hard to piss away money on every new shiny toy.  Yet it seems like every young person around has one.  Or two.  I see them, on the train, walking about the city, with a shiny thing in one hand and another shiny thing, but with a bigger screen, in the other.  There are often wires coming out of their ears as well.

I’ve seen newborn babies.  They do not come out with wires in their ears.  I surmise that the wires connect to something shiny, even if it’s hidden in a pocket.

How do all these kids manage to have all these shiny toys?  It could be that they are all far wealthier than I, and hence the massive constant expenditures to be on the cutting edge of technology doesn’t affect them.  And yet I keep reading about layoffs, deferments, huge unpaid student loans, no jobs to be had.  In my day, there was a causal connection between jobs and the accumulation of wealth.  Did I miss something?

I fear I did.  I fear that one of two things are happening, and right under my nose.  And I missed it.  Since I know that Apple gives nothing away, and that they must pay for all the shiny toys, these people must have plenty of expendable income.  Either they earned it or somebody put it in their hand and told them to have lots of fun.  If the former, it may signify that they are earning great sums of money, or that they are spending every penny they make.  These toys aren’t cheap, and I know for a fact that a house, food, children, vacations, clothing and cable television aren’t cheap.

If they are spending every penny they make, what will they do on a rainy day?  I can’t believe that holding an iPad over their head can be very good to keep the rain off their head.  Or their iPad.  And what about the other stuff one needs to survive?  Can they afford that too?

But worse than spending every penny of disposable (and not disposable) income is the idea that someone is putting money in their wallet when they aren’t looking, perhaps as they are sitting on the couch playing GameTube and eating Cheetos.  If that’s the case, I bet I know who it is.

I’ve often rapped the Slackoisie for their entitlement and narcissism.  But watching the two-fisted technophiles strutting their stuff, I realize that it’s their parents, my tribe, who have and continue to enable this.  Will they ever believe that a day will come when they have to turn in their iPad for baby food or a new interview suit?  If they never learn, how can they continue to cruise through life with all the toys they haven’t earned?  How can we expect them to learn to grow up, to appreciate the value of a dollar and a hard day’s work, when money continues to appear in their wallet as if by magic, and converts itself into the iPhone 97.0 (platinum card version)?

There’s no reason for the young to stop when we won’t stop enabling their most unproductive tendencies.  It’s bad enough that we’ve blown their priorities, but now we exacerbate the problem with disincentives to take responsibility for themselves?  We tell them it’s a rough world out there, but then put little pillows under their feet so their every step can be cushy and soft.  How do they learn to walk by themselves?

Yes, despite our mistakes and misguided love by shiny toy proxy, they will ultimately have to grow up and take responsibility for the world.  But the persistence in enabling them isn’t helping.  And it’s most assuredly hurting.  Don’t put another twenty in their wallet.  Don’t make their bed or wipe their cute little tushy.  Let them chew their food themselves. Heck, make them chew their food for themselves.

And for crying out loud, don’t give them the money to buy anything that begins with a lowercase “i”.  If they want an i-whatever, let them wait until they can buy it for themselves.  And only after they’ve bought enough food to feed the baby.

Mike at Crime & Federalism  presents an interesting and disturbing question.

When a client files a grievance against a lawyer, the lawyer may breach some aspects of the attorney-client privilege to defend herself.  If a client says, “My lawyer never returned my e-mails,” the lawyer may share e-mails with the State Bar to prove that he was responsive to client demands.  That rule is fair, since a client shouldn’t be able to deny his lawyer the right to defend herself.  

Enter the Internet.  

What if a former client writes: “My lawyer was terrible.  He never returned my calls or e-mails.  I had a million-dollar case, and she blew it!” 

Hardly a far-fetched scenario, and quite likely one that has and will continue to arise given the ubiquitous nature of the internet.  Indeed, this is the dark side of Avvo’s putatively consumer-centric approach, providing a forum for client gripes against their lawyer under the guise of transparency.

Let’s make the hypothetical a bit tighter.  Assume the client isn’t a nutjob and her beef is based on a good faith view of her experience.  The complaints aren’t malicious, but subject to reasonable dispute.  The problem is that any substantive response by the attorney would require disclosure of confidential communications.

As Mike correctly notes, the privilege is owned by the client, not the lawyer.  It’s abrogated when the client files a grievance against the lawyer, both as a practical matter to allow the attorney to explain and defend his actions, as well as a legal matter as the client, by affirmatively offering confidential communications to others outside the privilege, has waived it.  But Mike states:

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day.  He asked the same questions over and over again.  After evaluating his case through discovery, we realized his case was marginal.  We told him to settle the case for $25,000 – nuisance value.  He refused.  The trial court dismissed the case on summary judgment.  Now he’s angry.  By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”

I’m not entirely clear that’s accurate.  Waiver of privilege is an all or nothing proposition.  Once a client discloses confidential communications to others, it constitutes a waiver.  It’s the client’s to waive, and there’s nothing to prevent her from doing so.  It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship.  Once waived, however, the privilege is extinguished.  Like pregnancy, it’s not just a little waived.  It’s waived.  End of privilege.

Using Mike’s hypothetical then. the question is whether the client’s disclosure served to waive the privilege.  It’s of no legal consequence whether the client intended to do so.  Waiver can be unintentional, and can even occur by the mere failure to object to disclosure by asserting the privilege.  Should the client believe that she can say whatever she wants, secure in the belief that her attorney’s hands are tied, it doesn’t change things. 

It seems to me that in Mike’s hypo, the client has clearly waived privilege by her disclosures, and thus freed the attorney to respond without ethical lapse from disclosure of privileged communications.  But that’s not quite the end of the problem.

The duty to protect confidential communications isn’t our only ethical obligation to our clients.  We also have a collateral ethical responsibility to protect them, even from themselves.  So the freedom to dispute a client’s attack by disclosing otherwise privileged communications must be tempered by the fact that, angry or not, accurate or not, they are still our client.  I hasten to add that even a former client, one whose representation has concluded or one who has replaced us with new counsel, remains our client.  Forever.  No matter how much you hate them. 

Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process.  While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.

Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.  But we’re still lawyers, and still subject to the full panoply of ethical obligations to our clients.  It sucks to be wrongly attacked.  It sucks that we can’t come out swinging and beat the nemesis into submission.  It’s only natural to want to not merely win, but crush someone who you feel wrongly accuses you.
And yet, control the visceral reaction, the desire for blood, and remember what it means to hold the privilege of representing another human being.

Some days, it sucks to be a lawyer.  But other days it pretty darn good.  You’ve got to take the good with the bad.

It must be special to be a victim, for that’s what everybody wants to call themselves.  Victim.  We all feel sorry for the victim.  So sorry, in fact, that our eyes water and minds grow fuzzy with empathy.  And that’s how reason becomes twisted to reach the rationale of the victims rights advocates.

Lawprof Paul Cassell has posted at Volokh Conspiracy about his latest article arguing for broad construction of the “right” to mandamus appeal under the CVRA. 

There is a clear “circuit split” among the various circuits as to whether crime victims are entitled to ordinary appellate review in the appellate courts or merely “clear and indisputable error” review that applies in the setting of mandamus petitions.  I argue the crime victims should receive the same sort review as other litigants. 

The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.

If you’re like me, you spewed coffee all over your keyboard when you read Judge Cassell’s words.  Crime victims should receive the same sort of review as other litigants?  You bet.  Absolutely.  Let them have exactly the same sort of review as defendants in criminal cases.  Nothing. 

It’s not bad enough that the victims rights crowd uses whiny-worded arguments in combination with muddle-minded rhetoric to fundamentally alter the nature of criminal versus civil authority, so that their victims can enjoy the power of the government to vindicate their private, personal interests.  It’s not bad enough that they want to veto the prosecutor, trump the judge, and bootstrap the rights designed to protect a defendant into their arsenal of personal revenge.  No, that’s not enough for them.

Crime victims now want a power that has been denied the defendant, that presumptively innocent person for whom the Constitution’s bill of rights was intended, and leap frog their way to the top of the appellate docket.

The defendant gets a god-awful ruling, absurd and ridiculous, harmful and destructive, wrong in every respect?  Tough nuggies.  There’s not a thing to be done about it until after the prison door slams shut and the defendant gets to see how good he looks in an orange jumpsuit.  And then, of course, all the benefits of presumption shift to the government, so that the appeal begins from the point of view that he’s guilty as sin, and has to leap tall buildings to get even past the most obvious of errors.

But not the Victim.  While a defendant has no right to an interlocutory appeal, victims do.  While the defendant can’t do anything to prevent proceeding to trial in the face of a major Brady denial, discovery failure, massively wrong suppression decision, the victim can tie the case up at will when the prosecutor hasn’t been sufficiently loving, honoring the victim’s every whim or whine. 

The reason for this distinction is obvious.  Defendants are evil and unworthy.  Victims are wonderful and sympathetic.  So what if the defendant is as yet presumed innocent, no crime has as yet been proven and, by definition, there cannot be a victim without a crime.  We can happily blink and make every conceptual foundation of criminal law magically disappear, so that our victims will feel warm and fuzzy.

The gist of Judge Cassell’s issue is that the 10th Circuit has held that purported victims must show “clear and indisputable error” to obtain reversal of a district court decision.  Some district courts, oddly enough, don’t have enough room in the well for that third table, especially since it’s required to be bigger and fancier than the other two.  Such outrageous treatment of victims.  Appeal! Appeal immediately!

The argument would fall into the category of silly, perhaps borderline greedy, but for the fact that Judge Cassell tries to sell it as if this is how everybody else gets to play ball at the Circuit; “the same sort of appellate protections as all other litigants.”  All?  Judge Cassell knows better.  Judge Cassell knows well that this isn’t the sort of appellate protection received by one very large, one very discrete, one very despised group of litigants.

If Paul Cassell wants victims to enjoy the same protections as “all”, then let him start with the “all” for whom the Constitution’s protections were intended.  A defendant can’t appeal at all until the case is over and he’s suffering the consequences of error.  Until that changes, the argument to expand appellate protections for victims. like “all” other litigants, fails miserably.

Houston criminal defense lawyer Mark Bennett posts a truism:

“Not a team sport.”

That’s how the federal prosecutor described federal drug defense practice after a hearing in which two colleagues and I had shown a certain unity of purpose on behalf of our clients.

Divide and separate is the name of the game for federal prosecutors (that and, I can bribe witnesses but you can’t). It’s much easier to convict four people when they can be cut out from the herd one at a time. It is often true that “if nobody talks, everybody walks,” but the corollary is that one talker takes everyone else down.

The incentives are built into the federal system to smash any potential cohesiveness of the defense like shards of glass.  Whether cooperation or safety valve, the message is save yourself by screwing your co-defendants.  Divide and conquer is the prosecution’s strategy.  Too many defendants, upon the advice of counsel are only too happy to appease.

This mindset relies on the oft-repeated myth that nobody wins in federal court.  It’s a lie.  People win.  Sometimes it’s a total victory.  More often, it’s a partial victory, but a victory far beyond anything gained by flipping and ratting.  The ones who rush down to the U.S. Attorneys office to be the first on line when the doors open take the full weight of the government’s claim, from the absurd loss calculations to the plea to the top count.  Quick, snitch before the other guy snitches against you.  Whatever you do, don’t stick together.  Don’t all go down with the ship.

When the defense presents a unified front, not as matter of conspiracy or, as the snot-nosed prosecutor would call it, a team sport, it drives the government nuts.  They have come to depend on the defendants rushing to their door.  They have come to believe that all they need to do is point a finger and criminal defense lawyers will run, not walk, with their clients to rat out their mothers, fathers, brothers, sisters, wives, husbands, children, grandparents.  Trumped up allegations?  No problem, somebody will come in to confirm them, if not further them, provided they think they can get a break for it.

Federal drug defense can be an every-man-for-himself venture. If  you know that a codefendant will cooperate and convict your client, it often makes sense to beat that codefendant to the debriefing table. The U.S. Attorney’s Office wants it that way.The Government’s advantage is reduced when the defendants and their lawyers coordinate their efforts; when defendants are pointing fingers at each other, the Government just has to sit back and watch as the defendants do the work of convicting each other.

Nobody vavles by telling the government that it’s allegations are wrong, that they blew it, that they’ve got nothing.  Sure, the requirement is to come in and fully admit one’s participation.  But participation in what?  Too many times, the earlier flippers cop out to a crime that never happened, but they have no choice but to agree or they don’t get the benefit.  When the hold-outs are later offered deals for a fraction of the time the “early adopters” agreed to, subject only to their prayer for a 5k1 letter, don’t the flippers feel foolish.  Of course they do, which is why they’re the first to get on the horn with the lawyers for the hold-outs, asking what can be done to bail them out of the mess they’re in.  Nothing is the answer.  They made their bed.

But federal drug defense can be a team effort. This is most obvious in the “nobody talks, everybody walks” case or where more than one defendant makes it to trial, but it is also true where the Government has everyone on the hook. Even if everyone is looking for the benefit of a 5K1, lawyers who work well together can coordinate to make the 5K1 pie bigger for everyone without prejudicing anyone. It requires communication and trust among criminal defense lawyers who are lone wolves by nature.

Nobody suggests that cooperation or plea is never the answer.  Nobody suggests that every case demands a battle royale.  What is suggested is that the alternative, that its always a race to the U.S. Attorney’s office, is similarly not always the answer.  Slow down. Think first.  Get the Rule 16 discovery.  Talk to co-counsel.  Maybe the chain won’t have a weak link, and it will hold firm.

Dan Hull introduced me to Pat Lamb in Chicago a little over a year ago.  Pat’s a big, gregarious, funny guy.  He’s no dud, but the kind of guy you immediately want to have a beer with.  Then again, nobody is a dud when Dan Hull is around, sharing stories of his days as a confidant of Jimmy Page and the inspiration for Stairway to Heaven, before the tragic kiln explosion.

Pat’s become something of a preacher to civil litigators (you know litigators, the people who hope to become trial lawyers when they grow up) on the death of the billable hour.  Pat has now written a book about it, Fee Arrangements: Value Fees and the Changing Legal Market.

The idea of civil litigators using what are bizarrely called “alternative fees” is novel and shocking in a world where tenths of an hour are life and death.  Having sat through a few of Pat’s sermons at the Church of Value Billing, I’ve seen the heads of lawyers shake and shimmy as the soothing words flowed.

No, no, it can never be.

My God, it will change everything.

How will we ever survive?

He’s talking about civil lawyers doing what criminal lawyers have done forever. Granted, he talks as if he’s invented the concept, but then, the idea of losing hourly billing is so fundamentally radical amongst the civil crowd that he might as well have.  You can bet your bottom dollar that they wouldn’t pay the slightest attention to what lawyers in any other niche have been doing forever.  We’re the Saxons to their Anglos.  Maybe even the Visigoths.

What’s this all about?  It’s about charging by the case.  It’s about our dearest friend, fixed fees.  Of course, Pat also talks about value billing, where the lawyers earn more, or less, because they have met the particular needs and criteria of their client.  While we’re not allowed to play that game, it’s still a concept that we’ve used forever, caring about our clients’ concerns and doing whatever we must to meet them.

The traditional method of hourly billing encourages lawyers to spend time.  That’s what they are paid for, time.  Take forever to bring a case to resolution?  Time. Research and write in depth memos on every issue that could conceivably arise?  Time.  As long as one can arguably justify why it’s worth wasting, time is spent. More time?  More money.  Longer case? More money.  Unlike our clients, their well doesn’t run dry as long as they send in bills that satisfy the rigorous demands of grocery clerks.

Think of Pat Lamb as the missing link (having nothing whatsoever to do with physical appearance.  I swear.)  between civil litigators and real criminal defense lawyers.  Eventually, they will figure out that we’ve known what we were doing all along, and that their disdain for our rough and tumble world, guided solely by what worked rather than what our forefathers did, is misplaced, With Pat Lamb’s guidance, they’ll eventually figure it out.

And if you ever get the chance to hang out with Pat, or Dan Hull for that matter, don’t pass it up.  Just don’t let Dan show you his “scar”. 

Had the trial been for smoking dope, it wouldn’t have made more than a ripple.  Had it been for sticky fingers in the church till, a few might have “tsked”.  But the allegation was that a teacher sexually molested a 12 year old girl.  This sort of allegation is one that doesn’t wash away.

Sean Lanigan was a popular teacher and coach, but apparently not every student thought he was the ginchiest.  One girl hated him for his threat to punish her for bullying other students.  And she had no qualms about pulling the molestation card.  From the Washington Post :

The case against him hinged on the testimony of two sixth-grade girls at Centre Ridge Elementary School in Centreville, who said Lanigan had scooped up one of the girls in the middle of the school gym, carried her into an equipment room, laid her down on a mat and massaged her shoulders, groping her in the process.

The main accuser, who acknowledged having a grudge against Lanigan for threatening to discipline her for her bullying behavior on the school bus patrol, alleged that Lanigan briefly touched her breast and buttock during the incident.

Lanigan vehemently denied any touching.

Lanigan testified Wednesday that he did no such thing. The married father of three said he treated students the way he treated his children, picking them up, twirling them around, laughing and joking. He taught at Centre Ridge [Elementary School] for 12 years and coached youth soccer throughout Northern Virginia for 20 years.

He was tried.  He was acquitted.  The jury took all of ten minutes to decide.

Jurors said the prosecution had no case, and after reading their legal instructions, it took the seven women and five men about 10 minutes to come to their unanimous decision.

“It was an easy decision,” said juror Asmaa al-Ghafari. “I just hope Mr. Lanigan can get his life back.”

“There was no evidence,” juror Jacklyn West said. “There was no case.”

As people like to say when the “right” result happens, you can beat the rap but you can’t beat the ride.  It’s one of those cute phrases that doesn’t come close to expressing the pain, humiliation, anguish and fear that false allegations bring.  Lanigan didn’t beat the ride.

Lanigan, who was thrilled by the verdict, said his arrest, suspension without pay and subsequent publicity had destroyed his life. When his attorney, Peter D. Greenspun, discussed the devastation to Lanigan in his closing argument, West broke down in tears and the trial was briefly recessed.

West and other jurors said the 12-year-old accuser “had no idea of the consequences” of accusing Lanigan of molesting her. “This poor man. That’s why I cried.”

It’s no surprise that the accuser had no clue of the harm she would cause.  Adults who make false accusations never quite understand or appreciate what they are doing, the damage they are causing.  Often, they wish they never started down the road of false accusations, but by then it’s too late.  Others convince themselves that the victim of the victim deserved it, and begin to believe their own lies through some mental mechanism that protects them from realizing just how harmful their lies can be. 

But a 12 year old?  Who knows what thoughts flow through the mind of a young girl.  That’s why society puts a group of detached adults between the child-accuser and the accused.  The Salem Witch Trials should have taught us something, right?

One might suspect that the prosecutors who reviewed the allegations against a teacher and coach might consider whether their discretion, and they always have a certain amount of discretion, would be best exercised by questioning whether this was the product of a sick and dangerous teacher or an angry and malicious child.  They had the evidence before them, as the jury would later. 

After having the opportunity to carefully consider the evidence, and with the presumed capacity to appreciate the damage they would cause to a human being, the prosecutors made a decision: Go after Sean Lanigan.  Convict him.  And if not, destroy him anyway.

It only took the jury 10 minutes to tell the prosecution what it thought of the case.  Eight of those minutes were burned getting comfortable in the chairs, and another was used up shuffling papers. 

So now, Sean Lanigan is broke and broken.  His family, his reputation, his life, are devastated.  To what does he owe the ruination of a life 43 years in the making?  The judgment and discretion of a 12 year old and some prosecutors whose case was such a mutt that it couldn’t keep a jury out for more than 10 minutes.  The jury sent them a message, but they won’t listen.

Long after our disgust and head-shaking is over, and we’ve moved along to a new story of absurdity or abuse in the hands of those in whom we repose trust and power, Sean Lanigan will still be looking at the ruins of his life.  Fortunately, he is also blessed with supporters, those who would not buy into the accusation being all that was needed to burn him at the stake.  Whether this will be enough to rebuild a life has yet to be seen.  Why he should be compelled to rebuild a life has yet to be answered.

And the people who made the decision to pointlessly destroy a man and his family will move on as well, bright futures ahead of them.  They never got the message.

It’s a beautiful Sunday morning as I tap the keyboard, thinking of seven posts that might be written at this moment.  Instead, I’ve decided to do something a bit different. My thinking is that it’s Sunday, a day when fewer readers stop by than any other day of the week, and it’s unlikely that I’ll get too many complaints.

As of yesterday, Simple Justice was number 4 on the list of Avvo top legal blogs .  Today, it dropped from 4th to 6th, out of the top five and off the big list.  I’ve no idea why, nor does it matter.  Simple Justice will be as significant, or insignificant, as my posts.  But the interesting thing about it is that each of the top five is made up of blawgs written by groups rather than an individual, except for Ann Althouse.  She’s obviously more interesting than I am, which is why she remains at number 3.  I kinda like being on the big list, and feel badly that I’ve fallen into the abyss, as if the list just told me that I used to be okay, but now I suck.  But I can’t argue with a list.

Simple Justice is something I do to amuse myself, an opportunity for one guy to write whatever strikes him as being worth writing at any given moment.  There are no rules about what I write.  It’s mostly commentary about legal news and decisions, but can stray far afield without notice.  I regularly hear from readers about how they prefer some types of posts more than others, urging me to limit my writing to posts that interest them.  Even more regularly, I’m told how a reader hates a post and demands that I lay off the subject upon pain of . . . something.

I don’t care.  This is my soapbox, for better or worse.  If you want to read what I write, great.  I appreciate it.  If not, well, that’s the way the cookie crumbles.

More significantly, at least to me, are the complaints that I write too much, or that I must spend every waking moment writing to churn out the amount of content that appears here every most mornings.  I’ve explained numerous times that it just doesn’t take me very long to do this.  I average about ten minutes a post, often interrupted with important things like refilling my coffee mug, talking to my kids or listening to Dr. SJ’s instructions on what I shouldn’t screw up that day. I get back to writing when I can.  Writing Simple Justice never interferes with life or practice. 

People don’t believe me.  As my buddy Mark Bennett says (and I hope I get his quote correct the first time, this time), I can explain it to you but I can’t understand it for you.  Despite my having explained the mechanics of doing this blawg, I’m often met with disbelief, and occasionally called a liar.  Some have even questioned whether there are elves in some backroom somewhere churning out content to be posted under my name.

Sorry.  No elves.  Not even a backroom.  It’s just me.  One guy and a keyboard. 

How is it possible?  I take a few shortcuts for the purpose of doing a blawg.  While I spellcheck after finishing a post, I don’t proofread, which is why my posts often contain stupid errors that should be easily cleaned up.  Many blawgers contend that it’s idiotic to not proofread their posts, as it gives the impression of carelessness in one’s work, which a potential client might extrapolate to indicate similar carelessness in writings for court. 

They’ve got a point, though it’s not the case for me.  My motions and briefs are an entirely different matter than this blawg, and they are proofed thoroughly.  This blawg isn’t a motion or brief, and more importantly, no one’s life hangs in the balance.  That said, I now have my editor, Marilou proofing my posts, and she’s been an angel.  I’m much happier knowing that stupid mistakes no longer abound. 

People demand (yes, demand) to know how it’s possible that I can do this.  They suggest that I must spend all day doing it, that I must have no law practice, that I steal my content from others, that it’s just not possible.  Look.  I’m sorry if it bothers you so much that you feel compelled to rationalize why I can do this and you can’t.  Bothering you isn’t my purpose.  But what am I to do?  Should I not write because you can’t keep up?  Heck, people complain to me that I put too many posts up a day, more than they have time to read.  So don’t read.

Even the brothers and sisters in the blawgosphere complain, that I get to stories before them and don’t leave anything for them to write about.  This is total nonsense. I leave posts on the table every day, for lack of time or just because I don’t want to get another smack for being too prolific.  I despise the word “prolific”, as it smacks of an all-you-can-eat buffet.  The food sucks, but there’s plenty of it.  Don’t blame me if you can’t think of anything to write about.  In fact, don’t blame me for anything.  I have nothing to do with your choices.  You’re on your own.

As Norm says, there’s certainly a large dose of ego gratification in blawging,  One feels good about others reading their words, especially when there is no reason for them to read at all.  Of course, the flip side is also true, as the internet consists of an angry mob waiting to pounce.  Write the wrong thing and they will descend like locusts, ripping your eyes out of their sockets without a thought.  Readers tell me that I’m an idiot.  Some want their time back, wasted on reading my posts.  I offer a full refund.  And some readers think they can hurt me by telling me that they won’t be back.  My take is they’re borderline (at best) psychotic narcissists.  Even if they aren’t, that’s how I choose to perceive them.

Having a blawg is partially about writing, but largely about herding feral nutjobs.  The first thing every nutjob buys is a computer with internet access, so that they can roam freely and make sure that no one on the internet is saying anything they disagree with.  When I started Simple Justice, I was unaware of this.  It’s since become the most time-consuming part of maintaining this blawg.  You, on the outside, have no clue what I put up with.  None.

I’m often critical of other bloggers, who want to be recognized as a law blogger but instead engage almost exclusively in navel gazing.  And here I’m writing only about myself.  Since the vast majority of my posts here are substantive, I’ve given myself permission to indulge.  And it’s Sunday, so I don’t anticipate inconveniencing anyone who has stopped by for something worthwhile to find only this drivel.

You may have noticed that I included my name in the title of this post.  It’s the first time I’ve ever done that.  The reason is that my name appears in plenty of posts, usually the ones critical of me or at least being overtly snarky.  I know, the snarky ones are meant as an homage, but sometimes they take my jokes too seriously and strike me as being unable to distinguish between the person and the persona.  It annoys me at times.

A couple of weeks ago, an email came in about how the writer had googled my name and found some insane, vile posts about me on the second page.  My psycho stalker is still working hard through the night trying to get his inane nonsense on the first page of google.  You haven’t made it as a blawger until you have a psycho stalker.  Psychos, by definition, don’t go away.  I assume that people who aren’t totally nuts realize that these attacks are the work of a psycho.  I could be wrong, but I have no plans on spending my time worrying about it.

By putting my name in the title of this post, it’s likely to appear on the first page of google.  It will push the insane posts down the list by one.  It would be really great if everyone did a nice post about me and used my name in the title, so that the insane posts could be pushed back to page 28.  I don’t expect anyone will think it worth their effort to do so, unfortunately.  Simple Justice may matter enough to read, but there’s little concern out there for the writer.  I’m more the hired (yet unpaid) help, as far as others are concerned.

Simple Justice is as meaningful, or meaningless, as you find it.  It’s just the thoughts of one person, cranked out while drinking my morning coffee.  Believe it or not.  Care or not.  There are posts that mean more to me than others, and sometimes I’m bothered by the posts that attract little attention because I believe they are pretty good, or sometimes pretty worthwhile.  You don’t?  Yeah, that bothers me.  I’m not above caring that others share my view of what matters.  At the same time, I can’t make you care.

If you’ve reached this point in the post, I thank you.  My bet is that few will.  My navel gazing likely won’t interest too many folks out there.  There’s little to commend the fabulous life of a blawger.  No great wealth.  Certainly no appreciation.  Complaints? You bet.  Attacks?  Daily.  Freeriding? Constantly.  Yet I continue to wake up every morning with a bunch of stuff I want to write about, sit down at the computer and just start to tap on the keys.

You never know what’s going to come out.  I never do.  Thanks for reading.

Scott Rothstein may be the worst scoundrel to ever hold a license to practice law, but 

Looking back, however, lurking just below the surface was a person so fearful of failure and so terrified of ever having to struggle the way his parents did, that it translated into an acute anxiety disorder that was, at times, debilitating, and for which I continue to seek treatment today. Moreover, I now realize that it translated into an underlying set of character defects and personality flaws that would ultimately never allow me to accept any type of failure on my part. These traits would lay dormant for many years, held in check by the countervailing principles that were the foundation of my family upbringing, until my ego allowed them to manifest themselves in the form of an individual so narcissistic that I would do anything to avoid any type of chink in my armor; anything that would make me look less than uber-successful and perfect in every detail.

The fear of being recognized as unworthy is a powerful and dangerous motivator.  It’s what drives lawyers to deny the possibility that they might have been wrong when they blow a critical call in a case.  It’s what drives people to buy that BMW they can’t afford.  It’s what makes strong men cry in the privacy of their room. 

Rothstein offers, at numerous points in his letter, that his conduct was inexcusable and he deserves no concession from the court or those he’s harmed.  Yet, he states:

I understand that this Court must, and I expect it to, sentence me to a significant term of years. I only ask that you deal with me fairly and that based upon the fact that the record now exists, from my decision to return from Morocco and all that I have done since, that I am truly a changed man and that I have sincerely tried to redeem myself, that you consider giving me an opportunity to live at least part of the remainder of my life as a free man with an opportunity to do some good in this world. I will never forgive myself for what I have done nor do I expect anyone else to forgive me. But I will spend the rest of my life doing everything in my power to make right all the harm I have caused and to restore my family’s good name as best as G-d will allow.

 A changed man?  Sure, as is every man in prison.  It’s amazing how the epiphany comes after the fall.  Redeemed himself?  Not yet.  Not even close.  Redemption doesn’t necessarily happen to coincide with self-interest.

But it’s his last four words that are most striking:  as G-d will allow.  Notice (as is obvious) that he replaces the “o” with a dash, to show the depth of his religious beliefs.  This isn’t the only mention of God in his letter, where he earlier notes that he sought guidance from God to help him out of the mess he created.  It’s an odd view of religion where God can be invoked to coverup crime.

It’s said that religion is the last refuge of the scoundrel. 

Few lawyers, like Scott Rothstein, burn with the desire to be the biggest, best, most admired, most envied lawyer around, so much so that they would engage in a wild Ponzi scheme to accomplish it.  But how many of us have just a little bit of the Rothstein in us, enough to buy that fancy car to show how successful we are, or lie to a client and conceal an error because we can’t admit we’re human.  And as for being the wealthiest, most successful guy around, forget it.  There is always someone wealthier, more successful.  It was never worth the effort.

It would have been bad enough had he died only because of a complaint for panhandling by a liquor store in Waukegan.  It would have been bad enough had he been the right guy rather than someone who had nothing whatsoever to do with it.  But for Jose Martinez, he wasn’t the guy who panhandled.  Yet he’s dead anyway.  From the Lake County News-Sun :

Details remain sketchy on the circumstances surrounding the death of a Waukegan man who was tasered by police on Saturday.

Jose Martinez, 53, of the 800 block of Grand Avenue, was shocked into submission by a Waukegan police officer about 8 p.m. outside of Dave’s Liquors, 2300 Grand Ave., and reportedly suffered cardiac arrest. Lake County Coroner Dr. Richard Keller said Martinez was taken to Vista Medical Center East in Waukegan, where he was pronounced dead.

The only other bit of information offered:

Armando Martinez, 58, of Waukegan, [a] brother of the victim and a former Waukegan police officer, said the woman who was clerking Saturday night told the family that it was a different man who was causing problems at the store. He said he heard that police chased Martinez in the parking lot, stopped him with a Taser, then couldn’t revive him.

It’s not a crime to have a heart condition.  The police, naturally, say they are investigating.  According to Waukegan Police Chief Artis Yancey, he doesn’t want to elaborate on what happened because “I don’t want to cloud the investigation.”  Or they haven’t come up with a decent story yet.  They might be more inclined to “cloud” the investigation if there was some way to smear Martinez, say with a prior arrest or conviction. 

Had Martinez been a panhandler, which apparently he was not, his death would still be inexcusable.  Sure, panhandling is unlawful and, especially to business owners whose customers are hassled, annoying.  Does that demand the death penalty?  But Martinez reflects the worse case scenario, a man who has done nothing, not even the trivial offense that gave rise to the police presence. 

Did he fail to halt upon command of the officers?  Did he try to flee?  The above quote says police “chased” him, but that doesn’t inform whether Martinez did anything or the police saw him from a distance and ran toward him.  They could well have been out of breath (donuts will do that) and a bit miffed at the forced physical exertion.  They weren’t in a mood to chat, so tased instead.  Isn’t that their right?  After all, make a cop work and one should expect pain.  It’s one of the perks of the job.

It’s now beyond contention that a taser, though less lethal than a gun (although a gun is less lethal given the inability to hit the broad side of a barn), is, at its best, very painful and, at its worst, deadly.  So it was the combo of taser plus heart condition?  People are allowed to have heart conditions. That’s not something to hold against Martinez. 

Tasing is the use of force.  As with any use of force, its justification comes from protection against the use of force, whether directed at cops or others.  It may have become the weapon of choice of Waukegan’s Laziest, but that doesn’t offer much comfort to Martinez’s family.   Force is not a convenience for police, a quick and easy way to bring an encounter to an end or payback a noncompliant suspect.  But then, had it been merely a jolt of searing pain without death, nobody would have given this a second look.  Inflicting pain isn’t enough to make anybody take notice these days.  Heck, a death is barely sufficient to make anybody blink.  The cops in Waukegan can no more be trusted with tasers than cops anywhere else.

The story tells us almost nothing about the death of Jose Martinez.  And yet it tells everything we need to know.

Commenter Lee Stonum wrote:

 I am confident that Scott, Bennett, Pattis and Gamso are all hard-working, dedicated smart lawyers. I’m just as confident that Bennet & Pattis are superb trial lawyers (Scott & Jeff don’t talk as much about actual trial practice, but I’d guess they are also very good).

That was kind of him to say, but he’s wrong.  I write a blue streak, but that doesn’t make me a hard-working, dedicated smart lawyer.  Nor does the fact that I don’t write as much (anymore, anyway) about actual trial practice show that I’m “very good.”  Lee’s fallen into the trap of the blawgosphere.  Maybe I’m not a lawyer at all.  Maybe I’ve never tried a case in my life.  Maybe I’m twelve years old and pretending to be a lawyer when I should be studying for a spelling bee.

Okay, it’s fairly easy for me, since I’m completely transparent and verifiable.  Though Lee’s assumption, that my lack of discussion about my trials is indicative of my not trying as many cases as, say, Norm Pattis, is mistaken. In fact, I don’t, as my practice is very different than Norm’s, and I would never carry the volume of cases that Norm does, or go from trial to trial to trial.  That was my practice years ago, but it’s no longer the way I work. 

But my lack of discussion has nothing to do with that, and everything to do with my decision to not discuss my cases to avoid any possibility that a confidence or strategy will be disclosed.  I don’t own my cases, and they aren’t mine to write about.  They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet.  I respect that, so I don’t kiss and tell.

Others feel differently, and I accept that my position is not universally shared.  As a result, I learn a lot about how things are going for other lawyers.  In particular, about Norm.  He’s been bleeding all over the place lately, and sums it up in a post today.

It has not been a good year for me. I had a run of guilty verdicts unlike any I have ever had before. I lay in bed at night wondering whether I’m washed up, or whether I’ve become too arrogant to be trusted by jurors. In each case I tried this past year, I was able to accomplish what I wanted to do with the evidence. But the evidence, well, it kept on coming against client after client, a tsunami of grief that buried my clients and my ego.

After a loss, I sometimes sit late at night and wonder whether a better lawyer would have obtained a different result. This form of torture goes on sometimes for weeks, until a new case or controversy laps over the shore of discontent.

I don’t know any good trial lawyer who doesn’t believe he’s Superman going into the case, and a worthless wretch after a loss.  If you don’t feel this way, you shouldn’t try cases.  You can’t, no matter how many tricks you’ve been taught or gods you’ve prayed to.  But you get only one day to feel sorry for yourself.  After that, the pity party is over.  There’s work to be done.

That Norm has had a bad series of verdicts is unfortunate.  As a friend, I feel for him.  But as a friend, I say “snap out of it.”  We’re useless when we lose our confidence in our ability to try a case.  If you are washed up, you better figure that out for real rather than take another case and risk another life.  But you know you aren’t washed up, and that you’re just oozing self-pity.  You know that we stare down both barrels of the biggest shotgun known to man every time we step into the well.  If you can’t face it anymore, then it’s time to sit at a desk.  You aren’t ready to sit at a desk for the rest of your life yet, are you?

It’s more of a worry to me when a lawyer doesn’t feel the pain of a loss.  Either he doesn’t care, and takes another person’s life for granted, or he’s not yet ready to be entrusted with such a responsibility.  Not everybody is cut out for this sort of work.  In fact, very few are really meant to carry this heavy a load.  There are people in the courtroom who are just awful trial lawyers.  When they sit at the table next to me, I’m more afraid of them than I am of the prosecution.  The knife in the back is harder to see coming.

I’ve never tried a case where I didn’t think there was something I could have done differently, better.  Even when I win, I wonder.  Only for a day.  Then I put it behind me.  I mean really behind me.  To continue to carry that albatross around would make it impossible for me to walk into the courtroom believing that I can, I will, win the next trial.  And I will win the next trial.

Snap out of it, Norm. You will win the next trial.  And if you need to write about it to exorcise the demons, that’s fine, but then let it go.