The Supreme Court denied cert.  yesterday to Charles Dean Hood, the latest joke played by the Texas Court of Criminal Appeals.  You may remember it as the one where the judge, Verla Sue Holland , was deeply in love with the prosecutor, and, well, stercus accidit.

Scott Henson at Grits for Breakfast  spells out the details, so no need to do so again here.  It’s enough to know that the justices of the Supreme Court are romantics at heart, and not even an execution can stand in the way of true love. 

The good news is that Hood will get a new trial, purportedly because of erroneous instructions.  The bad news is that there’s no impropriety if the judge is screwing the prosecutor in an entirely different way than everyone else.  It’s almost like  they’re librarians .

Ain’t love grand?

The Supreme Court heard oral argument in City of Ontario v. Quon, providing the perfect opportunity for criminal defense lawyers to get a bird’s eye view of the folks into whose hands the future of the Fourth Amendment is placed, should Orin Kerr’s tech neutral  approach become the format for future of search and seizure law.

The point isn’t the Quon case per se, which is about the Stored Communications Act, a boring yet unconstitutional law that circumvents the Fourth Amendment because Congress says so, but about how tech neutrality plays out.  The notion is that the myriad of issues raised by developing technology and the digital world under the Fourth Amendment should be addressed by applying the rules developed over the past century for brick and mortar searches and seizures to electrons by analogy.  Orin explains it in his article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010), but that’s my shorthand version.

Just in the nick of time comes this post from Ashby Jones at the WSJ Law Blog .  Meet the tech savvy justices who will be deciding which analogy to use to deprive you of your constitutional rights.

According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

No doubt this will make you feel a whole lot more comfortable putting the future of our freedom from unreasonable searches and seizures into their hands, appreciating their firm grasp of technology and the ability to discern which exceptions to the Fourth Amendment to apply by analogy under any given circumstances.

I bet you’re shocked to find out that Supreme Court Justices probably didn’t pre-order the iPad, desperate to be on the cutting edge of cool.  And yet, let’s place our faith in personal freedom in the ability of Luddites to apply horse and buggy rules to the digital world.  It would be a shame to waste a century of exceptions, right?

H/T Orin Kerr , who loves irony as much as I do.

Update:  And here’s some more exchange  via Orin:

CHIEF JUSTICE ROBERTS: Do any of these other people know about Arch Wireless? Don’t they just assume that once they send something to Quon, it’s going to Quon?

MR. DAMMEIER: That’s — that is true. I mean, they expect –

CHIEF JUSTICE ROBERTS: Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.

MR. DAMMEIER: Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And –

CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.

And that, tech neutral types, is how the law and tech intersect.

There’s nothing unusual about a defendant being on trial for his first arrest.  What is unusual is when that he’s the person who made the arrest, and it was his first as a police officer.  The trial of Patrick Pogan  for his assault on bicyclist Christopher Long during the Critical Mass rally in Manhattan has opened, which I like to call the “Big Shove.”

As it turns out, Pogan, who has since resigned from the force, was a mere baby cop when he become a video star of the internet.  According to his lawyer, Stuart London, Pogan was just following orders.

But Mr. London said during his opening statement that Mr. Pogan, who had been on the force for just 11 days when the confrontation happened, was naïve and simply following the orders of his superiors. At a briefing earlier that evening, a captain told Mr. Pogan and other young officers that they needed to issue summonses, Mr. London said.

“How do we stop them?” an officer asked, according to Mr. London.

“Do what you have to do to get them off their bikes,” the captain responded, according to Mr. London.

So Pogan ran over to Long and slammed him off his bike as Long tried to pass.  A bit literal, but it did serve to get Long off the bike.  Still, this fails to explain why Pogan decided that Long would be the person to be debiked.  London explains that too in his opening.

Mr. Pogan’s lawyer vigorously attacked Mr. Long, 31, as a reckless, pot-smoking miscreant who was the provocateur that night.

“Christopher Long is a bike rider that conned Pogan in this whole situation,” Stuart London, Mr. Pogan’s lawyer, said in his opening statement. “Christopher Long is a bike rider who knew exactly what he was doing.”

So it was the crafty criminal mastermind, bicyclist Long, who played agent provocateur to naïve rookie Pogan, compelling the officer to run toward Long and body slam him to the ground as part of his scheme as a reckless, pot-smoking miscreant.  This wasn’t immediately clear from the video  that’s been around since the incident, or apparently a second video taken by a cyclist behind Long.

(Addendum: At the request of readers too lazy to click on the link to see the video, here’s a reprise)

Now that London cleared that up, what of the criminal complaint  filed by Pogan alleging that Long attacked him (and it should be noted that police officers, in the heat of performing their stressful work, sometimes confuse who attacked whom.  No seriously, it can happen).

The arrest was Mr. Pogan’s first, Mr. London said, and his sergeant was the one who filled out the report. Mr. Pogan merely signed off on it, and was not trying to cover anything up, Mr. London said.

There you have it.  Pogan wasn’t being evil, but just didn’t read the complaint when he swore it was truthful.  I mean, does anybody serious buy into that whole swearing to tell the truth thing?

There is a monumental schism between the defense of a cop and the defense of anyone else in America.  When defending a cop, as London regularly does on behalf of the PBA, you can make outrageous claims and allegations that would be absurd when defending anyone else.  This is because people want to believe that the police are here to protect and serve, are really the good guys, would never do what is clearly shown on the video.  People struggle to find excuses, no matter how far-fetched, for their wrongdoing.  They need to believe.

London’s allegations about Christopher Long are ridiculous.  That doesn’t mean that they won’t fly, although this particular case presents one of the longest stretches to reach for a not guilty verdict we’re likely to see.  Whether it flies will be told when the verdict is returned.

Until then, it’s worth bearing in mind that had there been no video of the Big Shove, it would have been Christopher Long on trial for assaulting rookie cop Jason Pogan.  And the verdict would have likely been a foregone conclusion.

Orin Kerr announces  that his latest law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010), is now online.  This is the abstract.

This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

My eyes burn as they absorb each word.  Oh, the horror. 

As courts, invariably reaching to grasp a way to deal with the intersection of technology and the Fourth Amendment, look to a credible source for guidance, Orin has emerged as one of the foremost thinkers.  His works are regularly cited, and serve to provide a foundation for consideration of the constitutionality of search and seizure law as applied to the digital world.  He’s a player.

It’s been clear for some time that Orin’s “net neutrality” approach, the application of existing “brick and mortar” Fourth Amendment precedent to evolving technologies and the digital world by analogy meant that we are doomed.  Same black letter law.  Same 17 million exceptions to cover every search.  Same judges using the “file cabinet” analogy to explain why suppression is denied. 

Don’t believe me?  Then do what every cautious lawyer does on Sunday night.  Watch the Celebrity Apprentice, Rod Blagojevich  edition.  He’s turning a laptop computer upside down, looking for a pencil perhaps.   Granted, Blago was a governor, not a judge, but neither post has a test for computer literacy.  Do you really think judges are inherently more savvy than Blago.

Ultimately, the technology neutral approach leaves it up to the only person in the room who can’t distinguish a text message from twitter to decide which inapplicable analogy strikes him as most appealing.  At least when we went from Conestoga to Packards, you could see that one had chrome and the other didn’t.

Since Orin first floated his tech neutral approach, I’ve tried to persuade him that it was the wrong way to go.  I’ve failed.  Now that his latest law review article is out there for all to see, it’s too late to undo the damage that Orin Kerr has done to the future of the Fourth Amendment.

There is, however, one saving grace.  No one who would use his misbegotten theory to justify suppression can find it, because they don’t know how to turn on the computer, and even if they did, would never be capable of formulating a viable Google search.  Now, if only we can rid them of their law clerks, there may still be hope.

When Dwight David Eisenhower appointed Earl Warren to be the Chief Justice of the Supreme Court of the United States in 1953, it was the “biggest damn fool mistake [he] ever made.”  The Warren Court did not perform the way President Eisenhower expected, and he wanted his money back.

Adam Liptak explains that recently retired Associate Justice David Souter was the last of the stealth appointees.

When liberal groups analyzed Justice Souter’s record as New Hampshire’s attorney general and as a justice on the state’s Supreme Court, they concluded that he was a hard-core conservative.

It didn’t quite turn out that way, though some may question whether it was Justice Souter who shifted a little to the left, or the court that shifted a lot to the right.  Since then, we’ve had no big surprises:

But 1990 probably marked a turning point in the confirmation process. The six justices appointed in the two decades since have performed largely as expected, probably thanks to increased scrutiny of more robust paper trails and less ideological drift.

The contemporary nominee’s résumé yields so much valuable information, legal scholars say, that unexpected judicial decisions are much less likely now. Nominees’ backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court.

The reason for the accuracy is that candidates are drawn from one of two places, either federal appellate courts where they have long records of written decisions demonstrating their views, or service in the executive branch, where formal and informal discussion clarifies their true leanings, at least to others in the executive branch.

The talk that the only criteria for appointment is competence is sheer and utter nonsense.  That’s not to say that anyone suggests that appointees are not competent, but competence alone will get you a seat in the gallery, provided you wait on line.  It’s competence plus agenda, the clear and demonstrable showing of adherence to a political and philosophical view upon which a president, and senate, can depend. 

This means that the pool of candidates for the Supremes won’t include a trench lawyer.  Not for Republicans, and not for Democrats either.  Not now, and now in the future.  Never again.  And if you lawprofs think that’s funny, you aren’t in the pool either, unless you are able to get a gig on the circuit bench.  Of course, there’s a far better chance for a lawprof to wind up in a robe than your typical trench lawyer, so maybe you get a chuckle or two.

The problem is that the pool of potential appointees is so small, and so insular, that our third branch of government is comprised of an elite within an elite.  For anyone who believes that the Supremes are, by virtue of their job, detached from the reality of society in general, and even the practice of law in the trenches, consider that the desire to make absolutely certain that no one gets the nod without having an absolute lock on their views means that the broadest segment of the legal profession, no less society, will never again be represented on the Court.  That’s an awful lot of experience to be ignored.

Given that Supreme Court appointments are for life, in order to immunize the court from transitory political whims and empower justices to make bold decisions without fear of impact, the limitation of future appointees to be drawn from this incredibly narrow pool of federal appellate judges and top executive branch staff is frightening.  These are the people who make the rules by which the rest of us live, and few of them, if any, have every actually lived life on the streets like the poor schnooks who have to abide their rulings.  Their decisions describe a view of reality from on high, like the “new professionalism” of cops, or the incentives/disincentives for alleged criminals.  As if they have a clue.

The irony is that presidents, who are elected based upon transitory political whims, get to name folks to the court who will sit in their seats for decades after the presidents are turned out of office.  While the appointments may reflect the public’s will at the time of their appointment, that doesn’t mean that their political and legal agendas are still suited to the good of the Republic decades later, and that leaves one branch of government with potentially poor choices for a generation to come. 

Of course, this cuts both ways, and whether one sees the court as too liberal or too conservative, it’s political foundation is firm and predictable.  Considering how many 5-4 decisions have come from the Supremes since Justice Souter took the bench, how tenuous the basic law of the land has become with a single vote sufficient to change the rule of law 180 degrees, the Supreme Court has become little more than a proxy for political hardball based on the guy naming names.

What the American people won’t be getting is a court comprised of men and women who bear any resemblance to them, or have much more of a feel for their lives, and hence the impact of their decisions, beyond the way it looks from the heights of an appellate bench.  No matter how brilliant or well-intended, there may never be another Supreme Court Justice who knows anything about life on the street again.  And that won’t stop them from telling us what it’s all about.

In preparation for sentence, a defendant charged with financial crimes (the erstwhile “white collar” criminal) will do everything possible to show the court four things.  First, that the crime was an aberration, and that he’s otherwise lived an exemplary life, committed to helping others and charitable causes.  The defendant is sincerely remorseful for his conduct, often borne of some psychological defect or trauma that diminishes his moral culpability.

Second, that people depend on him, both personally and professionally, and incarceration will cause significant harm to others who are innocent of any wrongdoing.  Usually, there will be letters from friends, family, employees, clergy, attesting to the positive impact the defendant has had on their lives, and the negative impact his imprisonment will have. 

Third, that there is no purpose to be served by imprisoning the defendant, there being no likelihood of recidivism, no threat to society, no need for rehabilitation.  Fourth, that the defendant has already suffered devastating consequences, from the loss of his savings, often home, career and reputation. 

Done well, the presentation at sentence can be a moving experience, particularly for the defendant and his family and friends.  It humanizes the person called “defendant” and the life summed up in counts in an indictment.  Yet, it doesn’t necessarily produce the empathy that defendants expect, much to a defendant’s anger and amazement, and to the heartbreak of his spouse and family.  The inevitable question is why?

Sam Fishman  was a lawyer with Latham & Watkins, who threw in a little for himself when billing for his firm.  As billing partner, he changed expenses, charged them off to clients, and pocketed the small change.  In the scheme of financial crimes, this one was embarrassingly petty, amounting to a loss of $350,000 over 13 years.  It ended one day, and he pleaded guilty to mail fraud.  At sentence, Fishman tried to show that he was, aside from his crime, a “distinguished, reputable, highly-esteemed model citizen.”  He sought a sentence of probation.  Instead, he was sentenced to 15 months.

After imposing sentence, Southern District of New York Judge Victor Marrero did something very unusual.  He explained himself.  His explanation, of why all the wonderful reasons offered by Fishman’s lawyers at Littman, Asche & Gioiella, failed to achieve their intended purpose.  It’s a remarkable explanation of the flip side of a life of virtue, marred only by a life of crime, and it’s incredibly instructive in understanding why, all the fine sentencing arguments aside, the court may not be inclined to be as sympathetic to the defendant as he might hope.

In seeking the Court s leniency, Fishman has made an impassioned case here and in his extensive written submissions that raise several significant issues. The professional thoroughness and diligence evident in counsel’s preparation, the strength of advocacy and the level of support expressed for Fishman by friends, family and business associates, call for a correspondingly detailed explanation of the Court’s ruling.

As a point of departure, the Court notes that Fishman’s presentation, though stressing points that argue for uniqueness, distinction and individual consideration, in fact is not uncommon. The Court has heard much of the argument in echoes from similar pleas for mercy frequently urged in this courthouse, indeed in courtrooms across the country. In particular, Fishman’s argument falls into a pattern advanced by a subset of the white collar criminal. This category encompasses a select class: distinguished, reputable, highly esteemed model citizens such as Fishman. The list of their achievements and virtues is long and impressive. At home they are good family men and women, caring spouses, loving parents, loyal and reliable to friends. At work, they are looked up to as outstanding professionals and business partners. To their community’s charities and public causes they are generous patrons and sponsors. And as worshipers they are devout, often rising as leaders of the congregation.

Yet, for all of their outward rectitude, these otherwise good people suffer a fatal flaw: they sometimes lead a double Iife.  Somewhere at the core, in a distorted dimension of the soul, the public image they present is as false as the lies they tell to sustain the appearances of an exemplary life. And somehow, for reasons that always defy reason, they fall into crime, doing wrongful deeds that seem aberrational, selfish and greedy acts that, when caught, they claim are entirely out of character with their otherwise law-abiding lives.

A copy of Judge Marrero’s sentencing memo  was sent to me yesterday, and I read it for the first time.  It’s worth a full read, for a excellent appreciation of how the court will look at your presentation, as well as something to offer defendant’s so that they can better understand why their life of virtue (aside from their crimes) doesn’t guarantee them a pass.  Judge Marrero’s reasoning is enormously instructive in explaining the applicability of the sentencing criteria and the nature of mitigation for the financial crime defefendant.

But more to the point, the client who views himself as a “distinguished, reputable, highly esteemed model citizen” often finds himself incapable of appreciating that when he stands before the court for sentencing, he’s a criminal defendant.  No matter what he’s done before, there remains a crime for which a sentence will be imposed.  Both the defendant and his counsel need to be prepared to face this challenge and reality.

Like some early risers, coffee is an important part of my morning routine. After five or twelve cups, I’m ready to greet the new day. Having done this for many years, I’ve grown rather attached to the vessel that holds the brown elixir of life.

It was purchased on a lark in 1977 at a store in Ithaca, New York. The name of the store has long since faded from memory, as have so many other things from that era. But the mug remained. It was the mustache shield that caught my eye, a way to keep the bristles dry while sipping. Ironically, it’s a right handed mug, and I drink my coffee with my left hand, but that didn’t matter. It struck me as a cool cup at the time.

No one else around the house, whether fraternity, apartment or single-family, since would drink from it. It was my mustache mug, and there was no mistaking it. It’s not that anyone else particularly wanted to drink from it, but it was sufficiently peculiar that it was reserved for me.

The mug remained intact, but for some fading to the blue field of Old Glory and some darkish stains in placed where my cleaning fingers couldn’t fit, for many years. Then my daughter reached her teen years and was ready to share in the dishwashing duties. On her very first night at the sink, there was a sound of a small crash. Nothing huge, but enough to be heard from the next room. We smiled. This was to be anticipated, as the feel of soap suds through one’s fingers gave rise to rookie slips.

When I walked in to sooth her, I saw in her eye a tear, and in her hand, a mug. It was my mug. There was a chip in the rim where once there was only the remnants of coffee. I told her it was okay, it happened to everyone and not to worry about it. She looked at me, doe-eyed, and said, “but Dad, it’s your mug.” I kissed her forehead and told her it was fine. She smiled and went back to work.

I walked in the other room in shock. For decades, I drank from one mug. One. What would I do now?

The next morning gave me the answer. I drank from the sides of the mug without the chip. More chips, and a crack, developed since then. I had to be more cautious about where the mug and my lips met, but I was up to the task. Dr. SJ thought I was ridiculous, using this broken down old mug every morning. I added it to the list. Until a suitable replacement could be found, it would have to do.

A package arrived at my office about a week ago. I wasn’t expecting anything. It was from Colin Samuels of Infamy or Praise fame. Inside was something he thought I would enjoy.

I can’t bring myself to throw out the old mustache mug. I know it will eventually wind up in the earth, but not today. But my morning coffee comes to me in a new vessel. Thank you, Colin.

Cattle are branded.  Lawyers are not.  So says Kevin O’Keefe and Doc Searls, who fired the first salvo.

As for personal branding, I still think it’s an oxymoron. Branding is a corporate practice, not a personal one. Build a reputation by doing good work. Put that work where others can judge its value. Contribute to the success of others, and credit others generously for their contributions to your success. Never promote for its own sake. I think it’s a mistake to categorize these practices as forms of ‘branding,’ because they are expressions of humanity and integrity.

Branding is a word used by every marketer on the internet.  Pounded over and over in the hearts and minds of the clueless, we must “brand” ourselves.  Putting aside that it’s marketing jargon designed to make it clear to lawyers that we have no future unless we incorporate the language of marketing into our lives and practices, the meaning is that we must define ourselves or we’re nothing.  Worse still, if we don’t define ourselves someone else will.  You don’t want that, as someone might define you as stupid, incompetent or uncaring (the worst thing any lawyer can be on the internet).

But my newest heroes say “nay”, forget branding.  Kevin offers a short list applicable to human beings.

Rather than talking of personal branding, I’d actually be more comfortable categorizing the below practices for lawyers as expressions of humanity and integrity, as opposed to forms of ‘branding.’

• Build a reputation by doing good work.
• Put that work where others can judge its value.
• Contribute to the success of others, and credit others generously for their contributions to your success.
• Never promote for its own sake.

Heresy, and the comments to Kevin’s post show it.  Sam Glover from the Lawyerist  writes:

I don’t disagree with Doc’s post, but I think it is a matter of semantics. You can call it reputation or you can call it personal branding; the result is the same.

Marketer Nancy Myrland  says:

Kevin, call it what you’d like, and maybe not branding as it is a misunderstood and often maligned term, but we all do have a brand whether we like it or not. We can choose to let it be formed for us by those who observe us, and choose to define it as they wish, or we can take an active part in its formation and communication. I choose a combination of the two, hopefully led by the latter.

The assumption that this is a shallow practice is not constructive, and will only serve to confuse lawyers and other service providers whose clients are looking for a reason to choose them.

I’m not saying I’m blatant about using the words that I have chosen to define my brand, but it is my responsibility, and my practice, to use them, to model them, to act like them, and to communicate them when it is appropriate.

Karen Cariello chimes in:

At its most basic level, branding is a shorthand for the promise of value that the product intends to deliver. Thinking in these terms it’s easier to wrap your head around its application to a professional service provider. As Nancy eloquently said above it’s important to be proactive in defining what your promising to deliver to the community – what does one’s name mean? After all, isn’t the first step to Google someone before we hire them?

Is it a semantic difference? Are lawyers remiss in not being proactive in defining their brand?  Heather Morse-Milligan  comes clean:

Lawyers come to marketers daily with the request to “differentiate” them from their competition. Usually this is impossible because their competition also graduated top of their class from a similarly ranked university, top of their class from an Ivy League law school, and are AV-rated, Best and Super-duperist with their competition who practice law across the hall, down the street or on the other side of the country.

Having a personal brand is what differentiates you from your competition. Your personal brand is what you stand for. It’s based on your reputation. It’s what you’re known for in the marketplace. It’s what differentiates you from your competition. It’s what comes to mind when someone says your name.

The battle lines have never been laid out more clearly, all the meaningless rhetoric aside. 

Branding is what you want to call yourself.  Reputation is what other people call you.  You give yourself a brand.  You earn a reputation.

If your name is associated with the words, aggressive yet caring criminal defense lawyer, every time it appears online, does that make it so?  According to the marketers, you are whatever Google says you are.  Of course, that doesn’t mean that anyone else in the world agrees with your characterization of yourself.  But seriously, what matters more, being the person you want to be or appearing that way on Google?

Of all the marketer’s protestations, Heather’s offers the clearest and most comprehensible, both in its frankness and its illogic.  It’s the world of lawyers through the marketer’s eyes.  As Heather says, it’s what marketers do to fulfill the lawyer’s desire to “differentiate” himself when the sad reality is that he’s got nothing to distinguish himself.  He’s like everyone else, so he fabricates a brand.

But Heather goes on to write:

Your personal brand is what you stand for. It’s based on your reputation. It’s what you’re known for in the marketplace. It’s what differentiates you from your competition. It’s what comes to mind when someone says your name.

This, of course, is the big lie.  If this was the lawyer’s reputation, then he would have no need of marketers to manufacture it for him.  Indeed, if the lawyer had a reputation in the marketplace, he would have no need for marketers.  Rather than being “based on reputation,” it’s the creation of what one wishes was his reputation.  It is, in short, the pretense of reputation in the absence of any.

Marketers must vehemently disagree with this, as nobody would buy their services if they tried to sell branding as “scam your way to success by fabricating a reputation that you’ve never earned.”  That would make it sound dishonest, and some potential marketing customers might feel badly about signing up for something so underhanded.

But marketers can’t actually do much if they aren’t allowed to create a reputation, a brand, out of whole cloth.  It’s not like they can make you a better lawyer, help you to win cases, to research better, write better, argue better, become credible to judges and juries alike.  That takes work.  And time.  And the lawyer who wants to market wants results now.  They certainly don’t go to marketers to be told that a reputation takes years of effort to achieve.  Well, a bad reputation can be achieved pretty quickly, but that’s another story.

Kevin gets it.

Can you imagine someone telling Clarence Darrow, labeled a ‘sophisticated country lawyer,’ that he needed a personal brand to survive? I cannot.

When someone’s reputation is unfairly sullied, they’ll ask ‘Where do I go to get my reputation back?’ They don’t ask where do I go to get my brand back?

Legal marketers have struggled against lawyers’ animosity toward them and their hard work of marketing a law firm. Maybe it’s because they hear terms like brand and don’t want a brand or to be marketed? Maybe those lawyers want to know how to be a better lawyer, how to serve more people, and how to let more people about their skill and passion without selling themselves? I don’t know.

Yes you do, Kevin.  You can buy a brand, but you can’t buy a reputation. 

For all the lawyers who, in their effort to “differentiate” themselves overnight by paying a marketer to attribute qualities to them that they do not deserve, bear in mind that there are only so many words available to frame the lie.  Your marketer may call you “aggressive yet caring,” but he’s going to write the same things about the next lawyer who pays him, as will every other marketer.  Your “brand” won’t distinguish you any more than it will distinguish every other lawyer who wants to buy an overnight reputation.  Plus, you will know that you don’t deserve it, haven’t earned it and are living a lie.

It doesn’t matter if you think you’re the Super-de-dupest lawyer around.  It only matters if that’s what your clients, your judges, your potential clients think.  No brand is going to make you any better than you are, or give you a reputation you don’t deserve.

Lawyers get reputations the old fashioned way; we earn them.  The only thing personal branding will do is earn you the reputation for being a shameless marketer.  It’s a hard reputation to shake.

To any criminal defense lawyer who practiced in federal courts since the 1980s, the slide down the slippery slope was one of two things.  The end of the decent, honest, hard-working criminal, or a short term opportunity to cash in.  That’s when everything changed, from guys who lived their lives on the street, engaged in profit-making endeavors that the government frowned upon, coming home at night to their wives, children and the American dream, to snitches.

The fault lies mainly with the United States Sentencing Guidelines, so harsh and inflexible that any honest drug dealer caught in its clutches felt there was no way out.  Where before they would never consider ratting out their brother, it was rat first or be ratted on.  Only one would get the 5K1 letter, and there was no glory in spending the next 20 years in prison.  Snitch was the new growth industry on the streets of the city. 

A large segment of the criminal defense bar dug secret underground tunnels leading directly to 1 St. Andrews Plaza, so they could get their quickly and sight unseen.  The only thing you needed to know to become a New York rat lawyer was how to smile and say sweet things to federal assistants.  And the AUSA thought they were brilliant, what with people pushing and shoving to be the first through the door.

Since people were falling all over themselves to rat anyway, a cottage industry grew of people who cut out the middle man and went straight from the cradle to the DEA payroll.  We went from agricultural nation to manufacturing nation to snitch nation, which has the lowest cost of doing business and no barriers to entry at all.  America is the land of opportunity.

Sound crazy?  Consider this:  On the first page of the instruction sheet for Form 1099-Misc ., the Internal Revenue Service includes this very important bit of information.

Fees Paid to Informers. A payment made to an informer as an award, fee, or reward for information about criminal activity is not required to be reported if the payment is made by a federal, state or local government agency, or by a non-profit organization exempt from tax under 501(c)(3) that makes the payment to further the charitable purpose of lessening the burdens of government.

You don’t make the first page unless it’s an instruction that matters to a whole lot of taxpayers. For example, the instruction for “gross proceeds paid to attorneys” is on page two.  That’s where the small potatoes stuff is put.  Page One is for the big time instructions.

To all those kids considering law school, which carries both enormous tuition costs as well as significant opportunity costs, the IRS is trying to tell you something.  And it’s tax free income.  It doesn’t get better than that.  Plus, you get to hang out in bars.

H/T Jamie Spencer at Austin Criminal Defense Lawyer

The jury found that the plaintiff was thrown off the roof of a building in Brooklyn?  Fuggehdaboutit.  Via John Hochfelder, the Appellate Division, Second Department, holds that the jury that found for the plaintiff, Pedro Acosta (whose name isn’t really Pedro Acosta, as if that’s a big deal in Brooklyn) and awarded him $1 million for his damages was, well, nuts. 

The trial judge, James G. Starkey, denied the City’s post trial motion for dismissal, stating that while he would have found against Acosta had he been the trier of fact, the divergent versions were for the jury to decide, and the jury had spoken. 

But police throwing a guy named Acosta (kinda) off a building in Brooklyn? That wouldn’t happen, says the appeals court.  The brief decision  states:

Contrary to the plaintiff’s contention, viewing the facts in the light most favorable to him, there was no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. In sum, the plaintiffs version of the events was “manifestly untrue, physically impossible, or contrary to common experience, and such testimony should be disregarded as being without evidentiary value” (Cruz v New York City Tr. Auth., 31 AD3d 688,690, affd 8 NY3d 825). We note that the record is replete with instances where the testimony and other evidence adduced by the plaintiff was manifestly untrue and tailored to avoid the consequences of previous statements made by him to disinterested nonparty witnesses. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law.

 

In other words, no way, no how, could that jury have possibly been right.  Even viewing the facts most favorably toward Acosta, the jury was still totally out of their minds, flip-city, kooby-shooby.

Given the dearth of information in the appellate decision, it’s impossible to tell whether the court’s reversal was based upon actual fact, undisputed and irreconcilable as a matter of law with the jury’s finding in Acosta’s (kinda) favor, or whether the court simply refused to accept the premise that some cops threw Acosta (kinda) off a building.

Regardless, this case reflects something fascinating either way.  A jury in Brooklyn, despite evidence that may have been a little less than overwhelming, was inclined to find against the New York City police and in favor of a guy who changed names like other people change clothing, on a claim that the cops threw him off the roof.  These are the very people who live, who work, in Brooklyn.  They breath Brooklyn air.  They smell Brooklyn scents (odors?).  They are Brooklyn.  And they are ready, if not chomping at the bit, to find that cops throw people off roofs in Brooklyn.

What does the jury know that the Appellate Division doesn’t?

What does the Appellate Division know that the jury doesn’t?

Could they be any farther apart?

For a court to hold that no reasonable jury, as a matter of law, could find in favor of a party is as strong a statement that the jury was just totally out of their minds as possible.  It’s almost as if this was a Bronx jury, because everybody knows that people calling themselves Acosta get thrown off rooftops in the Bronx all the time (just watch Fort Apache, The Bronx, if you have any questions).  But that’s an entirely different situation, as the buildings are taller and the Acosta’s aren’t around to testify.