A message came in shortly before lunch from a reporter at the New York Law Journal.  The Second Circuit rejected the habeas by Robert Bierenbaum to overturn his murder conviction.  Did I have any comment?

When Marcia Silver and Mark Seiden took up the cause after the conviction was affirmed, I met with them.  I tried the case with David Lewis, and we lost.  It was a bizarre case, with no body, no evidence and a judge bent on conviction.  We tried it to win, and we lost.

The only approach now was to seek habeas relief, and that required a different approach.  They asked me how I felt about the job we did at trial.  I could have explained why everything we did made complete sense at the time, though some of the decisions were simply calls that had to be made on the fly, and were no better or worse than the opposite call based on what we knew.  But I didn’t.

The defendant’s conviction depended on finding a new way to get into court, a new error to blame.  I offered myself to the effort.  In a case like this, a thousand different decisions are made which, in retrospect, could have gone either way.  My position is that my representation must, by definition, have been ineffective given the outcome.  My client was convicted; my job was to win an acquittal.  I did not do my job well enough.

Much time and thought went into detailing and cataloguing things that could have changed the trial.  It’s easy to play Monday morning quarterback, but it’s also necessary and proper to do so when it comes to a trial.  We’re lawyers.  We’re not perfect.  If we’ve made a mistake, our clients should not have to suffer for it.  More to the point, our clients should not have to suffer for our egos, and desire to pretend that our decision-making was perfect, beyond reproach.

Reproach me.  If that can save my client, then call me any name in the book.

Many times, I’ve urged lawyers to shove their egos down their throats and take it like a man when a client claims ineffective assistance of counsel.  They can’t do it.  It’s partially because they can’t admit that they might ever be wrong, and it’s partially because they can’t stand the thought that their name might appear next to a question of their abilities.  Suck it up, children.  It’s not about you, but the guy who’s sitting in a prison cell.

I help write up the list of things I did wrong.  They settled on nine claims of ineffective assistance.  I probably came up with 20 errors that came out of the trial.  I was happy to have it all placed on my back.  Everything that happened was my responsibility, no matter who actually did it, because that’s what it means to be the lawyer.  Whether it was really error, or error only in hindsight, is irrelevant.  It failed to achieve an aquittal, so error it was.  It’s a bit weird when the article attributes conduct to me that was performed by my co-counsel, but it’s not really important.  The only “harm” is that my name is associated with the challenged decisions rather than his, and I can take the punch.

The one thing that annoys me, as news reporters tend to do, is the misquote. 

Mr. Bierenbaum “got a horrible shake out of Leslie Snyder. In my opinion, if my being ineffective would get him a new trial, he can call me ineffective all day long,” Mr. Greenfield said. “The medical examiner’s testimony was entirely speculative. It was an absurd trial. We were fighting a myth, fighting a story, and the fact that they were able to put in evidence of things that are conceptually possible is absurd. Usually, trials are about evidence.”

I never said “in my opinion,” but that “if it will save an innocent defendant.”  If he couldn’t get the names or facts right, why would he get the quote right?  No big deal, though.  It’s not about the story or the quote.  It’s not about ego or blame.  It’s about the guy sitting in a prison cell.  If it will save an innocent defendant, he can call me ineffective all day long.

Chicago’s a pretty town, especially when the weather doesn’t suck.  That alone isn’t a sufficient reason to come here.  Not even the opportunity to meet a bunch of blawgers and twitterers.  I came to make a point to a bunch of in-house counsel, that nobody has a white collar in an orange jumpsuit.

The same themes upon which I tread lightly here were the subject of my presentation.  Three felonies a day.  Corporate and financial crime is still crime, and hiding heads in sand doesn’t prepare one to deal with it.  That corporate executives make lousy defendants, poorly equipped to handle an arrest and prosecution.  The phrase “white collar crime” was dead, and their survival depended on their coming to terms with it.

The controversy came in the message that they didn’t need Biglaw former prosecutors, whose strategy was capitulation because there was no winning or they were really the good guys.  They needed criminal defense lawyers.  They needed to learn what it meant to fight and win.  They needed to believe that the formulaic approach that permeates defense in the hands of people whose only experience is prosecution was the road to perdition, for their executives, their corporation, even themselves.

Did they believe?  I dunno.  There remains a wall between the general counsel and criminal law.  There’s a certain morbid fascination, but no real connection.  They know that other corporations, other CEOs, CFOs, GCs get busted, but that has nothing to do with them.  It will never happen to them.  It couldn’t.  They’re the good guys.

It seems that in-house counsel aren’t a whole lot different than regular folks when it comes to crime.  It never happens to anyone until it happens.  And then it’s too late.

I tried to make that point.  I didn’t hold back.  I suspect that many will agree that there is much they can, and should, do in preparation for the possibility of a criminal investigation and prosecution, but they will never get around to doing it.  They won’t prepare their staff.  They won’t identify counsel.  They won’t have their ducks lined up and when the hammer falls, they will be caught totally unprepared to deal with the most emergent of situations. 

Maybe they will think back to my presentation and say to themselves, I could have prepared for this.  It cost me two days of my life, of my practice, to be here to tell them.  It’s unlikely that anyone has ever told them what I did before, and I’m fairly certain that no one has ever spelled it out as clearly. 

For my part, I tried to help.  It’s really all I can do at this stage, and later, I won’t say I told you so.

Churchill said, “history is written by the victors.”  Of course, Churchill was British, and naturally inclined to ignore large land masses.  Texas is one such land mass, and it’s large.  Large enough to drive the content of textbooks across America, and thus tell us what our history is.

Mind you, it’s not like Texas is the first to consider reinventing history.  When my kid asked me to help with African empires in World History class, I was stymied.  There were no African empires when I went to school.  There was Greek and Roman, Ottoman and Byzantine, but no African.  When did this happen?

According to the Washington Post, the Texas School Board commission is up to some shenanigans in an effort to undo years of “liberal bias.

The Texas state school board gave final approval Friday to controversial social studies standards that minimize the separation of church and state and say that America is not a democracy but a “constitutional republic.”

The changes, which passed in a series of 9 to 5 votes, could have reverberations far beyond the Lone Star State’s schools and its 4.7 million students. The state’s large textbook market has traditionally led the way for others; at minimum, Texas students will get very different history lessons than does the rest of the country, as early as next year. Many teachers, academics and politicians on both sides of the aisle have condemned the standards.

This story threw Ann Althouse into a tizzy, not necessarily the changes but the newspaper’s characterization of the changes.

Or at least link to the text. And if you choose to paraphrase and not even link, and I have to look up the text myself, and your paraphrase is not accurate, it is my job to embarrass you by pointing that out.

Let me embarrass the Washington Post. Below, the material from the WaPo article, written by Michael Birnbaum, is indented. After the indented part, I’ve located the relevant quote from the Board of Education text, found here. (I’m searching 3 PDF documents: Economics with Emphasis on the Free Enterprise System and Its Benefits Subchapter A. High School; Social Studies Subchapter B. Middle School; Social Studies Subchapter C. High School.)

Her point is well taken, that if you’re going to criticize something as WaPo has done, the least you can do is link to the source material should others wish to read it and draw their own conclusion.  This led Jonathan Adler at Volokh Conspiracy to come to Ann’s defense.

Based on what Althouse reports, Birnbaum and the Post should certainly be embarassed.

The Adler decided to take his own advice and do some legwork, resulting in an update to his post.

It appears Ms. Althouse may have blogged too soon — and I may have been too quick to repeat her accusations against the Post.  Althouse relied upon the text of the standards as proposed a few months ago, not the final language.  The Texas State Board of Education revised the standards this past week before approving them.  Based on live-blogging by the liberal Texas Freedom Network (see here and here), and the direct quotes (and, in some cases, video they provide), the Post’s characterizations of the final language is much more accurate that Althouse suggested.  I think it’s fair to suggest the Post story should have quoted the relevant language (as this prior story did), but unless there is something inaccurate about TFN’s account, Althouse and I both owe the Post and Birnbaum an apology.

Althouse is a very tricky writer, as I’ve learned to my chagrin.  It’s a gift.  Her ostensible point, that WaPo shouldn’t characterize when it could quote or link, is certainly a valid point. The undertone, however, that it’s some liberal conspiracy to falsely smear the changes approved by the Texas School Board (“but I never said that, did I?”) is plausibly deniable. 

One might quibble by arguing that Althouse complains of the Post’s characterizations, then employs her own in their place, though she does quote rather than paraphrase.  But Adler says, she quotes from the wrong source, making her quotes invalid.  This could just be sloppiness, but if you’re going to quote, the least you can do is quote from the right source.

Althouse too updates her post to note that Birnbaum had written another article, the day before, with quotes that support his characterizations.  She also knocks the Texas School Board for not having the text of what they approved available:

I’m critical of the Board of Education for not posting all the relevant text on its website. And — as should be obvious — I’m not endorsing the standards themselves. The complexity and detail alone tends to show that the Board did not have the best interests of children at the center of their project. And it didn’t seem to care much about the capacity of teachers. The material on law, for example, would be difficult for a law professor to teach to law students.

Having thus exculpated herself, the ramifications of Althouse’s initial crafty critique remain on display in her comments (warning, rough language ahead):

These fuckers lie and lie and lie their asses off. Liberals lie about everything, all the time. There is nothing in modern progressivism that is not a lie. Everything they do is perched on a foundation of lies. Every point they make is wrapped in a blanket of lies. The truth is not in them.

This is a classic example. But you’ve only scratched the surface.

Had this been written elsewhere, some blawgers would have taken the commenter to task, or at least addressed the content.  Others would have just deleted it.  At Althouse’s blog, it stands untouched. 

It’s impossible to divorce the process, the critique and the content of what the Texas School Board has done.   Some, like the above-quoted commenter, will no doubt applaud it with all his heart and soul.  Others will challenge some of the basic premises, such as elevating the Confederacy to equivalent status with the Union in teaching the philosophical underpinning of the Civil War. 

Adler’s comments at VC are, as might be expected, largely dismissive of Althouse and her readers.  But then, they had the advantage of watching some videos of the Texas School Board’s meeting.

And a glimpse at how substantive decisions were reached.

The North may have won the Civil War, but a majority of the Texas Board of Education has won the minds of our children.  Althouse readers are marching on the Washington Post with pitchforks and torches as I write.

I don’t often express disagreement with my favorite marketing philosopher, Seth Godin.  Mostly because I think he’s an awfully wise man, and secondarily because I think he’s smarter than I am, which makes me think that if I don’t agree with him, it’s because I haven’t yet figured out what he already knows.

But Godin’s post about Multiple Dumbness, well, struck me as problematic.  I sat on it for a day, pondering why I was wrong and he was right, but failed to come up with the reason.  Thus, I take a chance and challenge his thoughts, assuming that someone will help me by pointing out the error of my ways.

The gist of Godin’s position is that, much as there are multiple intelligences, the opposite is equally true.

The flip side of this occurred to me the other day, as I was busy judging someone for being really dumb. Of course, no one is really dumb. And certainly no one deserves to be judged as such. If we’re good at different things, we’re also bad at different things, right?

No disagreement that we are bad at different things, though it’s unclear that it follows that no one is really dumb.  Life is patently unfair, and there are people who have no strengths, meaning that they are a bundle of weaknesses.  I know. I’ve met them.  I’ve represented some of them.  Not everybody has a redeeming feature.  The best you can say about them is that one weakness isn’t as bad as another, though none rises to the point of not being a weakness at all.

From this, Godin concludes:

The story people tell about you (and the one you tell about yourself in the way you act) may be broadcasting one of your weaknesses louder than you deserve. We often fail to hire or trust or work with someone merely because one of their attributes stands out as below par. That’s our loss.

I suspect this isn’t the case at all.  We choose not to hire or trust or work with someone because the dumbness at hand is the one that applies to our reason for considering this person in the first place.  If one is hiring, trusting, working with a lawyer, does it matter that he plays a mean jazz piano if he can’t present a persuasive argument?  You might want to go to a club and hear him tickle the ivories, but you don’t want him standing next to you when your life is on the line.

The “I’m OK, You’re OK” culture leads us to be kinder and more understanding to others.  This is a good thing when it comes to our behavior in general, learning to appreciate the positives and strengths of others.  This is a wonderful perspective to have when attending cocktail parties or meeting people on the street.  But Seth employs it as a business tool, something to recognize before separating the wheat from the chaff.

Does this constitute a loss?  Probably not.  Sure, you might hurt someone’s feelings by not loving them as much as they want to be loved, or denying them a job, your business, your trust.  But we are constrained to discriminate upon the basis of competency, and the fact that an “attribute stands out as below par” seems an awfully good reason to do so.

Often, people bemoan the fact that they believe they can do the job, deserve the trust, if only the other person would give them the chance.  It’s because of this cultural expectation that they are entitled to the benefit of the doubt, the shifting of risk from the person who comes off poorly to the person who is seeking a new hire, a trusted advisor, a reliable colleague, that people fail to address their shortcomings. 

Far too many people today celebrate their shortcomings, as if it’s their right to be wrong and they should be proud of their flaws.  While they may well feel that their flaws don’t render them worthless, they similarly aren’t the sort of thing that commands others to trust us.  Suggestions like Godin’s, that it’s wrong to decide that someone who doesn’t play piano particularly well isn’t the right person to book for Carnegie Hall, because he may have some alternative talent that doesn’t immediately appear, encourage this sense of entitlement.  Some people are dumb.  Some people can’t play piano.  It may not be shameful, but it’s no good reason to hire them either.

Perhaps dumbness, in its various forms, is a Darwinian form of protection, steering people away from the things they do poorly and toward the things they do well.  This doesn’t help those people who do nothing well, or are dumb in all things, but I suspect society even has a place for them.  If so, then Seth is fighting nature, and that’s a battle that even Seth Godin will lose.

A string of comments on my post about Faisal Shahzad’s pre-arraignment cooperation with the government disturbed me greatly.  My initial reaction was that no one who would say such things, believe such things, had any business defending a person accused of a crime, and I let the commenter have it with both barrels. 

I then calmed down and realized that his attitude was likely shared by many who sit at the table farthest from the jury, and it would be more helpful if I explained my views about things that should never need explanation.  Since I have the keys to this place, I have the ability to go back in time, make my initial reaction disappear and take a mulligan.  The comment  that got me started was:

What “cherished rights” are those? The right to be tried by a jury? How does that work out, usually?

The right to have your guilt proven beyond a reasonable doubt? A jailhouse snitch is usually good enough.

The right not to have to testify with no adverse inference being drawn? Come on.

Don’t tell me you don’t take all this into account when advising your clients.

When your client has more or less told you he’s guilty, when they have him on wiretaps and video doing the crime or confessing to it, what are your options? If it’s a drug sale you play the jury nullification argument. Good luck.

You fight them. Good. Someone has to.

I won’t countenance fabricating allegations. But the prosecutors are sometimes clueless. Is it a bad thing to help straighten them out if you can? How many innocents are not tried or even charged because the prosecutors got accurate information from a cooperating witness who might otherwise have been a defendant?

This is a tough business and a lot of tough decisions have to be made. I’m not saying you don’t have a point, but I just think you might be painting with too broad a brush.

The main body of the comment challenges the notion that there’s any alternative for a lawyer to advising his client to be a rat.  The penultimate paragraph is a justification for snitching, an argument that snitches save innocent people by giving prosecutors accurate information about people who they believe to be criminals.  I’ve yet to see that highlighted in a 5K1.1 letter as a basis for substantial cooperation. 

The came this comment :

It’s almost always impossible to defend from a position of strength. The deck is too stacked. Being ready, willing and able to go to trial has nothing to do with it.

In my opinion there’s only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution’s case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don’t say another word about it until you close.

But note that to play that game you must appear weaker to your opponents than you actually are. Indeed that is part of the reason it works. You really are defending from a position of strength, but others perceive the opposite.

And I said only that you can RELIABLY win this way. Even with something like that, it’s not a sure thing, the institutional momentum in favor of conviction being powerful enough to override even the most solid proof coming from a criminal defendant, even as the most laughable evidence will be credited if it comes from the prosecutor.

Still, I’m glad you get good results being combative from the beginning. If you can reliably win that way that’s great, with one caveat: I don’t believe the adversarial approach applies to anything other than the trial itself. If it comes down to a trial, both sides have to try to win. Outside of that context, two lawyers should be able to discuss the matter sub judice like normal, intelligent and well-informed human beings educated in the relevant law. A power game from beginning to end generally favors the more powerful side – that is, the government, the insurance company, the bank, etc. – in my experience, though I guess yours may be different.

There are many in the ranks of criminal defense lawyers who find the idea of expecting to win, or at least exceed expectations, too difficult if not impossible to accomplish.  The deck is too stacked, they say.  It’s too hard.  It can’t be done.  No one wins.  They aren’t so foolish as to tell this to the defendant when they put their hand out for the money, but in their head, the calculate out the time needed to put on a dog and pony show at a couple of court appearances and then a few meetings at the United States Attorney’s office. 

The client believes he is paying a lawyer for a defense.  The lawyer knows that the client is paying for surrender.  If he can chop off a couple of months, maybe a few years in exchange, the lawyer believes he’s earned his keep.  The client doesn’t actually get a vote in the matter, since he won’t learn of the capitulation until after the money has been turned over.

The lawyer rationalizes his conduct by believing that he knows better than the naive defendant, and that the few crumbs he may get the defendant are better than nothing at all.  Plus, he’s paid for a defense, which is far more time-consuming and difficult than cooperation, which puts him substantially ahead of the game financially.  It’s a win-win, as far as the lawyer is concerned.

The lawyer’s belief is grounded in low expectations.  He expects to lose, to fail, and goes into it with the intention of surrendering his client’s cause.  His expectations will always be met.

My response to the offending comment, after revisiting it, was intended to be helpful:

I don’t know if you’re a criminal defense lawyer, but I don’t think you’ve understood what I’m saying.  It has nothing to do with being combative, though there are times when that’s necessary and we need to be capable of combat when it’s called for.  I’m talking about going into every case with the attitude that I’m going to win, I’m going to find a way to achieve victory.  It’s using every weapon available, turning over every rock, looking for every crack, thinking and rethinking every approach, to find a way to prevail.

We rarely get cases where the facts are in our favor, or there’s a smoking gun piece of defense evidence.  So what?  That’s not what we do.  We take our cases as we find them, and still do everything possible to win. 

But if you start out believing that it’s a lost cause, you will certainly prove yourself correct.  The deck is always stacked against us.  That’s why we have to be better than the other side, smarter, faster, more thorough, and always more dedicated.  Being ready, willing and able has everything to do with it.  Being certain that you can’t possibly win is the surest path to losing.

By no means do I suggest that any lawyer, myself included, can win every case.  But I have never gone into a case, told a defendant that I would be his lawyer and accepted a fee, without believing that I would find a way to defend him. 

It’s so easy to fall into professional depression, to come to the belief that there’s nothing to be done, that conviction was going to be the outcome no matter what, and therefore efforts to win were futile.  Too many feel as if they are banging their heads against a wall, and decide that capitulation is the only rational course.  The deck is stacked against them, against us.  Why bother to try?  Why persist in the naive dream that there’s a chance.  There’s no chance.  Give up.  Just cut your losses off the top and move on to the next legal fee.

If you feel this way, you should not be a criminal defense lawyer.  You cannot do your job of providing a zealous defense if you believe that you will inevitably fail.  You cannot deceive your client by telling him that you will represent him when all you plan to do is babysit him through the cooperation process.  When a defendant looks to you to ensure he receives those cherished rights that you ridicule, that you will strive to find that crack in the overwhelming case, before concluding that there is no hope, you cannot look him in the eye and tell him you will when you won’t.  You’re lying to your client, if not yourself.

And you’re wrong.  It is not hopeless.  There’s no assurance that any lawyer, no matter how good or how much he’s paid, will find that crack in the prosecution’s case.  But it happens, and it happens all the time.  It may not produce an outright acquittal and heartfelt apology from the F.B.I., but it may well produce substantially reduced charges, loss valuations, suppression, whatever.  The lawyer willing to risk his ego and effort will find the crack.  The lawyer with low expectations will never find it.

The lawyer with great expectations may well fail to meet them.  The lawyer with low expectations will be a huge success as he will meet them every time.

Mark Bennett has also written about these comments, and you should read Mark’s thoughts if you haven’t already.

Doug Berman at Sentencing Law & Policy posts about a provocative piece by David Rittger at Cato@Liberty.  No doubt we are all familiar with Pastor Martin Niemölle’s speech:

“THEY CAME FIRST for the Communists,
and I didn’t speak up because I wasn’t a Communist.

THEN THEY CAME for the Jews,
and I didn’t speak up because I wasn’t a Jew.

THEN THEY CAME for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.

THEN THEY CAME for me
and by that time no one was left to speak up.”

Rittger plays off this theme in First, They came for the Sex Offenders.

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

Sure, there is the politicalization of the problem, which I find disingenuous (though isn’t that the nature of politicalization?), but the critical point is an issue that defies labels or finger pointing.  Today’s flavor is sex offenders.  I tend to believe the terrorists are already on the menu as well, though perhaps less obviously.  Neither has a decent lobbying effort or produces empathetic television commercials.  They don’t contribute adequately to political campaigns.

We have been force-fed the belief that these discrete groups are so evil, so wantonly horrible, that they are undeserving of what are described as the “legal niceties” of the Constitution.  We hate them so that reason is overcome by our visceral reactions, images of dead bodies and stories of horrible, disgusting tragedies.  We are hard-pressed to explain why people who have so badly broken the social contract deserve any sympathy or consideration.  There are truly evil people in the world.

Once we break through the wall once, however, it becomes increasingly easy to do so again.  Evil isn’t limited to sex offenders. Or terrorists.  Or drunk drivers. Or gangbangers. Or drug dealers.  Or jaywalkers.  People like me, who speak up for people I despise, are dismissed as clueless.  We can’t appreciate what it means to lose a child.  How would we feel if our daughter was brutally raped and murdered? 

The answer is simple, that I would want to kill the person who touched my child, rip him limb from limb, induce excruciating pain and stare into his eyes until the life flowed out.  I’m no less feeling than anyone else, and all my visceral reactions are intact.  But in the quiet moments when I’m not filled with anger and hatred about the evil that exists in the world, I’m capable of reflecting on why visceral reactions don’t make for sound public policy. 

A commenter yesterday informed me that most of America disagreed with my position.  He’s correct. I am in the minority, more often than I care to be.  But it doesn’t convince me to ignore reason and hop aboard the bandwagon.  It’s often difficult to ignore an easy, seductive path that appears to offer solutions to vexing problems.  It’s difficult to think of how our future plays out if we put aside sound judgment just this one time.  And it would certainly be nice to feel the loving embrace of the majority, slapping me on the back for having forsaken my errant ways and locked arms in the march of the majority.

But I can’t be a tyrant, even if it’s easier and will bring me popularity and appreciation.  You can bet your bottom dollar that I don’t want to be the hero of sex offenders or terrorists, but breaching the wall that separates them from the fundamental rights that accrue to all, even just this one time, cannot be tolerated.  It’s not that we should do it so much for their sake, but because when our turn comes, as I believe it eventually must, there will be no one left to speak for us.

Jordon Furlong at Law21 is either a visionary or the Prophet of Doom, according to how strongly you desire to embrace a future where the law is no longer a learned profession, but just another service trying to keep its head above water.  Jordon views the commodization of law as inevitable.

Lawyers also are under regulatory pressure (in England & Wales through the Legal Services Act, in Canada by the Competition Bureau, and the Missouri lawyers suing LegalZoom for the unauthorized practice of law better hope their suit doesn’t produce the wrong kind of finding). But still we resist new competition through UPL restrictions, we seem to regard technology as a nuisance more than a service facilitator, we routinely warn clients of the dangers of going it alone, and we maintain (patronizingly) that we always end up fixing the messes left by unrepresented clients.

By analogy, Jordon points to what’s happening with realtors as a window on our future:

The Globe & Mail reports on a rising wave of sell-it-yourself home realty, prompted by both Canada’s Competition Bureau and its intention to deprive Realtors of their near-monopoly as well as technological advances that allow people to buy and sell homes without professional assistance. Realtors — and this might sound familiar — have responded by fighting the Bureau’s efforts to open the market, scaring homeowners with the dangers of proceeding without professional assistance, and confidently predicting that these amateurs’ mistakes will simply produce more work for Realtors in the end.

While there are some obvious differences between lawyers and realtors, there are also some obvious similarities.  We both provide services based upon specialized knowledge.  The fees for those services often appear unrelated to the benefits derived, as neither is a profit center and both are viewed as a drain on revenue.  Most significantly, many people are uncertain that our services are necessary, and harbor a belief that they could have (or at least, should have) been able to do just as well without us.

When Jordon highlights our resistance to “new competition through UPL restrictions,” it suggests that he sees the future of law disconnected from lawyers.  Whether this means that companies that sell legal forms are the future, or getting legal advice from unknown avatars on the internet, or unbundled services by undisclosed lawyers, is unclear.  Jordon’s point has long been that all these forms exist and are growing, while we sit in our offices pondering when the phone will ring.

The primary cause of discontent with lawyers doesn’t strike me as all that hard to figure out.  People perceive lawyers as doing a lousy job of it and charging too much for the pleasure.  The former aspect has two components, the first being that the nature of the law isn’t an exact science.  When we hire a plumber to fix a leak, his job is done when the leak is gone.  Law doesn’t work that way, and lawyers can’t guarantee that they can produce what the client desires. Whether in litigation or transactions, a lawyer can fight for his client’s interests and desires, but faces an opponent doing the same for his client.  Someone isn’t going to get what he wants.

The other factor is that there are a lot of incompetent lawyers, or lawyers who just don’t care enough to provide competent services.  We’ve got far too many lawyers, and our law schools keep pumping out more.  This can be addressed, but won’t until half the law schools are shuttered, and lawyers police our own ranks to rid ourselves of the bad ones.

Ironically, one of Jordon’s beloved futuristic cures, technology, is likely a significant culprit in the dissatisfaction with lawyer incompetence.  Internet marketing allows the most mercenary, inexperienced and/or incompetent lawyer to promote himself as the most experienced, competent, caring lawyer alive.  Suckers believe what the marketing promotes, to the consumer’s detriment.

The second primary cause of discontent is the cost of legal services.  The simple fix is just to cut legal fees in half, but it becomes a problem when lawyers aren’t charged half price by plumbers.  Even to those who have chosen to practice law because it’s what they want to do with their lives, there remains a desire to feed one’s family, buy the occasional pair of new shoes and put gas in the jalopy.  Practicing law should not require an oath of poverty.

We can certainly reduce some costs with adoption of technology, but I suspect that applies more to some smaller niches than law in general, and the savings is relatively inconsequential. It also involves certain compromises, which is clearer to those of us who practiced before technology was so widely adored.  Computers are great, but spellcheck isn’t a substitute for a human proofreader.  Chatrooms and listservs create a sense of community, but the tenor of discussion can’t be compared to sitting down with a bunch of compadres in the same room swapping stories and advice. 

It’s unlikely that Jordon would disagree that public use of online legal forms, or free internet advice, or unbundled services, have their faults and downside.  They do, however, provide an alternative to costly, and possibly incompetent, legal services.  In many instances, these lawyer-substitutes will end up satisfying people’s legal needs, or at least do no harm in the process.  In some instances, they will result in disastrous consequences.  

So what is it that Jordon would have us do to greet this future?  Some have suggested we dumb-down the law to make it comprehensible to anyone with a third grade education, thus allowing regular folks to circumvent lawyers and have a fighting chance to figure it out for themselves.  People of good will believe that their positions are reasonable and just.  So do their adversaries.  Do the math.

Will this result in “anarchy and blood in the streets,” as derided by Jordon?  Maybe some, as it happens occasionally now.  It will, I believe, result in increasingly greater dissatisfaction with the law and the processes developed over the past millennium to resolve disputes and defend the rights of individuals against the sovereign.  If using lawyers sucks, going it alone sucks worse when you’re on the losing side.

Eventually, someone will come up with the concept of a group of individuals, specially trained to provide legal services to individuals, vetted for competence and empowered to hold themselves out to the public as being capable of serving them in a legal capacity.  I wonder what we might call such people?

Maybe the public won’t appreciate why lawyers came into being until they’ve had a chance to duke it out without lawyers and see how everything goes.  In the meantime, it doesn’t seem like such a great idea to either succumb to half-baked demand for lawyer-lite, cheap but unfulfilling. 

If that’s what being a lawyer is reduced to, I would prefer to be a plumber.  At least then I would feel the satisfaction of knowing that I stopped the leak.

Clap on.  Clap off.  Nothing.

The City of Los Angeles has threatened an economic boycott of Arizona in protest of its new immigration law.  That would be the one requiring police officers to hunt down swarthy looking individuals to make certain they are properly stamped.  Did Los Angelinos really think they could strong arm Arizonians?  Hah!

Via NBC de LA :

An Arizona utility commissioner said he’s willing to pull the plug on Los Angeles if the city goes through with a boycott of his state.

In a letter to the city of LA, a member of Arizona’s power commission said he would ask Arizona utility companies to cut off the power supply to Los Angeles. LA gets about 25 percent of its power from Arizona.

And it’s a carta excelente tambien.

If an economic boycott is truly what you desire, I will be happy to encourage Arizona utilities to renegotiate your power agreements so Los Angeles no longer receives any power from Arizona-based generation.

I am confident that Arizona’s utilities would be happy to take those electrons off your hands. If, however, you find that the City Council lacks the strength of its convictions to turn off the lights in Los Angeles and boycott Arizona power, please reconsider the wisdom of attempting to harm Arizona’s economy.

Electrons off your hands.  Heh.  Clearly, this guy knows his electric.  Of course, if LA doesn’t want to send its business to Arizona, it shouldn’t have to.  And if Arizona doesn’t want to send its electrons to LA, it shouldn’t have to.  And if they set up police roadblocks at the borders with well armed militia-types, and they don’t want any limousines with California plates coming in, well, there’s a right for that too.

For quite a while, the federalization of America has left us to think that states were a quaint anachronism, pretty much flags and television commercials for tourism dollars, but otherwise largely the same as part of the greater American whole.  After all, we’re American, and kids in uniforms are dying for the American way of life even as I type.  Nobody is out there claiming that we’re fighting in Afghanistan or Iraq for the Arizona way of life, or the California way.

As policy differences between states become manifest in ways we haven’t seen in generations, it raises some interesting questions and brings back reminders of the days when our nation was sufficiently at odds with itself to divide.  It’s hard to imagine war breaking out between LA and Arizona, but then Governor Jan Brewer, having redefined reasonable suspicion and banned ethnic studies in public schools to prevent an outbreak of knowledge, is a fierce defender of our American way of life.

The biggest question is whether anybody would really care if Arizona, Texas and Florida decided to go it on their own.  Imagine the savings in medicare and welfare alone.  Seriously, how many people from LA go to Arizona anyway?

H/T Turley (to whom I’m far too kind)

Some have noticed how my posts, between the moment I hit the publish button and the time you finally get around to reading, have substantially fewer typos.  No, it’s not because I’ve invented a blogging program that cleans up the errant finger poke of an old lawyer.  It’s the kindness of others, upon which I rely.

Whenever some snarky youthful lad would comment that I used the wrong word, spelled something wrong or included (or failed to include) an apostrophe, causing massive pain to his law review editor eyes, I would invite his aid to edit my posts.  Regular readers know that they come at a quick clip, and aside from spellcheck (a generally worthless endeavor but one I use out of habit), I never edit my blawg posts.  No, they are not appellate briefs, and no, they do not receive the attention given to work on behalf of clients.

Despite my invitations, none of my snarky lads ever lifted a finger to help.  However, some others have.  For a while, Jdog would clean up my act.  Ed at Blawg Review would let me know my many errors.  But after Jdog was co-opted into the Obama Administration as First Muse, and Ed took up travel on the professional golf circuit, I was back to where I started, alone and unedited.

To clean up my miserable mess, an angel appeared.  Marilou Auer, renown on twitter as @MarilouTheClerk, felt my pain and anguish.  It started with an email, a few typos corrected.  Since that first email, it’s never been the same.  

Thank you, Marilou.  Thank you for the gift you give me every morning when you let me know what I’ve done poorly and what I can do to do better. 

I asked Marilou to tell me about herself, aside from the excellent taste shown by her preference for the New York Yankees despite living in Virginia Beach, and here’s what she said:

I’ve been a legal secretary, with a few interruptions for other ventures and having two babies in two years, for 35 years or so. I’ve been blessed with some good employers who taught interesting things.

I live in Virginia Beach and am currently not working outside the home but am learning to do virtual-assistant-type work with a friend from another state. I nearly failed English class every year in high school and the one year of college that I attended. My grammar knowledge and spelling ability are a direct result of my Mother’s insistence on speaking correctly and reading to me daily until I was old enough to read for myself. Those were great gifts.

I proofread blogs as a substitute for the morning crossword puzzle. Reading carefully and concentrating gives me the mental wake-up that I need to start the day. I never mean to be insulting when I correct other people’s work, I just like the challenge and am thrilled when somebody welcomes my suggestions. It’s hard for writers to catch everything when they’ve seen their work several times already in the process of writing and editing and rearranging, so I enjoy being that “fresh eye” that even the best writers sometimes need. And I learn something from every post I read. It’s a win-win for both of us.

I’m always a little nervous the first time I send an e-mail to a lawyer with a suggested change. I worry that he might be offended.  There are some who believe a blog post isn’t worth taking the time to correct. I disagree and believe when a lawyer takes the time to write a post for his peers, he should make his post the best it can possibly be. Lawyers never know when their writing is going to be quoted, and a lawyer’s writing reflects the attention to detail with which he can also best serve his clients.

It’s kind of embarrassing to write about myself, but I wanted to be sure to say that I didn’t mean to act as if I think I know it all when it comes to spelling and grammar; I just like proofreading! The things that I suggest for correction are things that anybody would find; it’s just that I take the time to make the suggestion instead of just ignoring the error. And if just one person reads to their kid more, my job is done for the day!!

If you want any personal stuff, I have three daughters who are all doing well as adults, and I have a two-week-old grandson who has been a life-changer for me in a number of ways. I’m working on things that most people are working on, including losing weight, getting more exercise, finding mental challenges, and downsizing my possessions!

And I like you proofreading my stuff.  I’m very glad it’s a win for you, because it most assuredly is a win for me. 

After all the talk about whether terrorists get to enjoy our nation’s “legal niceties” like Miranda, the hard story is that Faisal Shahzad, the so-called Times Square Bomber (but more appropriately called the Fizzler) wouldn’t stop talking.  They could have warned him once an hour, and still the guy would talk.  Miranda, shmiranda.

When he was finally brought in for arraignment before Magistrate Judge George Yanthis, the government disclosed that this guy was a national treasure, giving up all kinds of great information.  He’s the mouth that launched “hundreds of agents in different cities working around the clock” to do critical national security stuff.  Big stuff. 

Now what are they going to do about him?

Shahzad may be brilliant, or just another guy who can’t shut his mouth, but either way, he’s managed to put the government in a jam.  From the New York Times :

It is possible he will continue to cooperate, and ultimately his fate may rest on how his cooperation is viewed. While there is little doubt that the information he provided has helped in the investigation of the attempted bombing, whether his assistance will help him is a different matter, one that has stirred discussion in the legal community.

Ah, cooperation.  The “saving grace” from a grateful government, the answer to every miscreant’s prayers.  No matter how bad your wrong, show the government some serious love and maybe all is forgiven.  Or maybe not.

By waiving his right to a speedy court appearance and, most likely, lacking a formal agreement that a lawyer might have negotiated, he may have undermined any leverage he had, said Anthony S. Barkow, a former federal terrorism prosecutor in Manhattan who now runs a center on criminal law at New York University.

“I think he is doomed,” Mr. Barkow said. “He has confessed to an extraordinarily serious offense that carries with it essentially life in prison.”

Doomed is bad.  If he’s doomed, after showing love the likes of which hasn’t been seen since Sammy “The Bull” Gravano, why then talk to agents?  The point of showing love is to obtain the hotly desired 5K1 letter from the government, the one that informs the judge at sentence that the defendant has provided “substantial assistance” to the government. 

This is the letter that launched a million rats, not to mention the rat-making industry for the criminal defense bar for lawyers who cajoled their paid-up clients to spill the beans on the defendants’ mothers rather than prepared for trial.  Why fight as long as there is someone left to give up to the government?

Not even the rosiest of rat-lawyers would suggest that Faisal will get a medal for the good things he’s given the government.  But then, since his charges carry life in prison, there’s a broad spectrum of reduced sentences available to him.  Will his cooperation serve him well?   Will a sentencing judge, upon reading his good works, reduce his 198 year sentence to 188? 

Of course, Faisal may not be cooperating for the sake of a benefit at sentence.  It’s always possible that a guy who wanted to blow up Times Square on one day wants to fulfill his duty as concerned citizen to the American government by helping to thwart terrorism the next.  People have changes of heart all the time.  At least that’s what they say when they take the witness stand, after they’ve flipped.

It’s not like the government needed Shahzad’s cooperation to make their case.  The evidence, according to government accounts, was overwhelming from the outset, and he was dead before he started talking.

And given the public accounts of evidence against him — including a key to his house found in the vehicle containing a crude bomb — the case against him may have been almost ironclad before he started talking. “Just the fact he was on an airplane trying to leave the country was brutal,” said Joshua L. Dratel, a lawyer who has represented many terrorism defendants.

Josh is one of the handful of lawyers who has done the heavy lifting with terrorism defendants, and he knows when the government’s got someone nailed dead to rights.  The fact that the government didn’t need Shahzad’s confession to convict him, however, doesn’t preclude his providing information about others, and if Shahzad’s information is legit (and not just about a bunch of illegal Taliban immigrants avoiding Arizona), that Shahzad was personally a goner doesn’t mean that he’s not a valued friend of the government when it came to all of his buddies.  And our government has to buy its valued friends.

But if Barkow is right, how does the government convince the next bomber (let’s speculate and call him the Armpit Bomber since shoe and underpants are already taken) to spill his guts?

Gerald L. Shargel, the veteran defense lawyer, said he thought prosecutors would have to offer some sort of benefit to Mr. Shahzad for his cooperation, for reasons that went beyond his case.

“What happens to cooperators is all about message,” Mr. Shargel said. If he received no consideration and was given the penalty of life without the possibility of parole, Mr. Shargel asked how that would be read by the next terrorism suspect who was apprehended. “What motive would that person have to cooperate?” he said.

So what exactly does the government do to grease the tongue of the cooperative terrorist?  There’s always virgins, if you can find some in the Southern District of New York.