Just before going to sleep last night, I received an email with a link to a slew of Youtube videos from IgniteLaw, an old fashioned tent revival show put on by Matt Homann’s business, LexThink, at the ABA TechShow in Chicago.  As opposed to my normal morning routine, reading news stories and blawg posts, I spent my time watching the videos, at least those that worked.

Bear in mind that this isn’t some wild radical subversive group hellbent on destroying the practice of law.  This comes with the blessing of the American Bar Association.  The subtitle of the program is “The Future of Law Practice: In Six Minute Increments.” 

Some of the segments were old news.  Eliminating our tendency to rely on paper when it’s unnecessary, for example, or embracing the use of new communications technology or billing methods.  Sure, it was presented in simplistic and jargonistic fashion, but they only had six minutes and everyone in the audience already knew all about it anyway.  If you weren’t part of the congregation, why be there?  

As  you’re reading this, you already know the internet exists and are more than likely familiar with the use of email. You can skip half the program, although it’s really kind of funny to watch people explain to a room of technophiles how paper works, or to a room full of lawyers  what lawyers do for a living.  Hint: We do not represent clients.

The other half dealt with lawyer marketing.  Imagine this: Attila the Hun speaking on diplomacy.  Kevin Chern of Total Attorneys speaking on the ethics of legal marketing.  Consultant/Professional Keynote speaker  Ari Kaplan, sans Prozac, challenging the faithful to push their marketing to the edge and beyond.  Take risks and be like Kaplan’s 4 1/2 year old child.  No, really.

Throughout the videos, you see shots of the audience, most of whom have a laptop open in front of them.  In the introduction, Homann asks those twitting to use a hashtag.  This is as geeky as it gets, and must have been an unbearable drag for those physically present (how old school).  Had it stayed in Chicago, it would have been fine.  Who cares if a bunch of poseurs, beloved of their avant garde approach to the banal, want to enjoy group sex?  It’s not like it was a room of practicing lawyers, who were unable to be present because they were busy practicing law.

There are, however, a significant group of lawyers who are susceptible to this sort of proselytizing.  The new lawyer.  The lawyer without business.  The crappy lawyer. The greedy lawyer.  The desperate lawyer.  And as one lawyer jumps on the bandwagon to “success”, others fear that they will be left behind, beaten to the punch by the lawyer who seizes the opportunity to use every means available to market, and jumps on before he’s left behind.

Why would they take this seriously?  This is the ABA.  The American Bar Association, the staunch defender of America legal mores and tradition.  If the ABA promotes it, it must support it.  And if the ABA supports it, it must be fine.  This is the way of the future or the ABA would want no part of it.  Quick, run out and buy hotpants before they’re all gone.

There are some assumptions that belie the lessons taught in Chicago.  That everyone markets.  That everyone wants and needs to market.  That marketing is good for lawyers and clients.  That without marketing, you will fail as a lawyer.

It’s a fraud.  Forget Ari Kaplan’s frenetic, breathless extortion to market like a four year old plays with a Wii.  It’s a lie.   One of the most offensive parts was the notion that legal ethics, being slow and plodding, resistant to change and unable adapt to ever changing technology, is to be ignored.  The problem isn’t with every new-found method of marketing being unethical, but rather with ethical approval lagging behind technology.  Just do it, and eventually it will be fine.

This is being promoted across the internet by a group of people who do not practice law, but who earn a living by persuading people who do that it’s okay to pay for their services, buy into their philosophy, and validate their business model.  This isn’t about your business model as lawyers, but their business model as snake oil salesmen.

That the ABA would tolerate this crap is a disgrace.  That the ABA would promote this cabal determined to convince lawyers that ethics are no longer a part of our obligation is inexcusable.  That they send this message to your computer is a conspiracy to commit wire fraud, because this is nothing but a lie.  It is not acceptable to engage in unethical behavior, even if it can make you money, even if it involves cool technology, even if a bunch of former lawyers turned pitchmen say so. 

What you won’t see at IgniteLaw is anyone spending their six minutes telling lawyers to work hard, put their client’s interests ahead of their own and conduct themselves with integrity and dignity, even if it means that they lose a few bucks in the process.

If only I could get the time back wasted on watching those videos.

The Supremes will hear oral argument today in Renico v. Lett, a chance to make sense of their predecessors’ decision in United States v. Perez, issued in 1824 BC.  The “BC” stands for Before Computers, a time when words were chosen carefully because brevity was at a premium.  It was far harder to write an opinion then, because it involved actually writing. You know, with your hand and a pen.  Not a Bic pen either.  Not even a Mont Blanc.

The decision in Perez is one paragraph.  A long paragraph, but still only a paragraph.  And it held that the Double Jeopardy Clause of the 5th Amendment doesn’t mean what it says.  Perez held that a person could indeed be put in jeopardy twice, provided the earlier trial was terminated for manifest necessity, whatever that means, as decided by a judge using sound discretion.  This is meant to distinguish between those judges who use unsound discretion.

It never even occurred to the Perez court that a hung jury constituted a failure to convict, or that lack of a conviction meant that the prosecution’s case failed to persuade a jury of twelve of guilt.  That could have been the end of it, had the Perez court so held.  Fail to convict, whether because of acquittal, the affirmative finding of a jury that the prosecution failed to sustain its burden of proof, or fail to convict because a unanimous verdict couldn’t be achieved, constituted the prosecution’s one shot.  The Double Jeopardy Clause means no second try.  There are no Mulligans in the courtroom.

Of course, Perez didn’t go that way.  A hung jury is nothing.  So what if the evidence failed to persuade twelve good men and true of guilt.  So what if the verdict of guilt had to be unanimous.  It would be different if they unanimously found the defendant innocent.  Oops.  That’s not what juries do.  But so what. 

Having long ago gotten past the hung jury question, the question today is whether a judge, without conferring with counsel, hearing argument, an Allen charge and on only the most cursory information, exercises sound discretion in declaring a mistrial.  Jeff Gamso describes the details:

It was less than two weeks ago that I took Miss Manners to task for promoting the notion that bloggers owed a duty to be nice to PR spammers.  The Manners woman, a/k/a Tamar Weinberg, self-proclaimed Social Media Rock Star (sorry if I’m repeating myself, but it always makes me chuckle)  says she won the battle, after running away shrieking.  Some people do that to drown out the laughter.

Later, Ken from Popehat let me know that Tamar characterized what happens here as “the business of business promotion.”  Ken nicely “explained” that she didn’t grasp Simple Justice.  It’s understandable that a vapid (and painfully narcissistic) Social Media twinkie would project her limited comprehension on law blogs and assume that we’re all in this for self-promotion, to make a buck, to strut around in hotpants.

But this left a question unanswered.  Where was the intersection between the world of substantive blawging and social media marketing?  What could possibly give the twinkies the impression that everyone else is in it for the scam?

My question was answered by Kevin O’Keefe’s post-ABA TechShow post, How to get coverage in law blogs.

At some conferences, talented PR professionals will introduce me to their clients. I want to be polite so in most cases I accept the offer. But I feel a little sorry for the CEO of a company I meet on such an introduction who asks ‘How can I get on your blog.’ They have little understanding of social media or blogs, they just want coverage.

Relationships, networking, engaging, authenticity, genuiness.  These are the words used in a language of lies.  Never confuse buzzwords with reality.  Social media marketers are so enamored of their lies that they can’t distinguish reality from the pitch.  They are intellectually and morally empty, and yet Kevin invites them into our world?  What are you thinking?

While Tamar may be a twinkie, she’s at least honest enough to admit that the only reason she ever stopped by here was because I used her name.  She’s got no interest in law blogs or criminal law,  It was all about her, which is fine since that’s what matters in her world.  And because I’m a troll, meaning that I haven’t been kind to her, she won’t be back.  That’s as it should be.  When someone has no interest in the substance of a law blog, then stay away.  If she had some interest in a subject that had some depth, she would have had a better grasp of what she was talking about.  She never will.

Don’t post comments or retweet posts to gain favor with someone merely to manufacture a “relationship” so that you can later capitalize on it to get “coverage” for one of your clients.  That’s not a relationship. That’s a scam.  No one needs friends like that.

Here’s a word that is rarely heard amongst the social media consultants: organic.  If there’s real interest, then nobody has to give you a paint by the numbers image to teach you how to create false friendships with others.  Comment because you are actually interested in a subject.  Twit because you actually want to twit.  Or don’t.  Say something nice, or not nice. Say what you really mean.

For crying out loud, be real. 

As for Kevin’s advice, maybe it applies to someone else, but not me.  Not here.  If Kevin, or any of his LexBloggers, want to establish relationships with the PR world, that’s his business, though I have some serious doubts that some of his LexBloggers, at least some who I know, have any interest in establishing deep, caring relationships with the PR world.  But he doesn’t speak for me, and there’s no interest here in becoming best friends forever.  You can forget about coverage.

If you happen to have a sincere interest in criminal law, on the other hand, your welcome here anytime.  And feel free to disagree with me.

Tell any member of the Slackoisie that they’re narcissistic and they’ll tell you that you’re wrong.  They deserve it all.  As with the Dunning-Kruger Effect, it’s almost definitional that the narcissist denies he’s a narcissist.  But the joint study by Jean Twenge from the San Diego State University and the University of South Alabama shows that narcissism has reached epidemic proportions in college students.

The study, led by SDSU psychologist Jean Twenge, sought to settle a hot debate in psychology over mixed results of studies examining the prevalence of narcissistic personality traits among tens of thousands of American college students. These traits include an unfounded sense of entitlement and overly high self-regard.

There is debate about the underlying causes of any increase in narcissism. Theories implicate parents, teachers and the media, which either allow or celebrate overly permissive attitudes toward individualism, and lead to an inflated and unwarranted sense of self-importance.

[Judge Weinstein] found that the monitoring, mandated by the Adam Walsh Child Protection and Safety Act of 2006, constitutes unconstitutionally excessive bail and violates defendant Peter Polouizzi’s procedural due process rights.

“The basic defect of the Adam Walsh Act, as applied, is that it imposes a mandatory limit on freedom of an accused without permitting an ‘adversary hearing,'” Weinstein held in United States v. Polouizzi (Polizzi), 06-cr-22.

Via Seth Godin.



Taylor Mali didn’t teach at my school.  But I had three teachers like him.

Taylor Mali didn’t teach at my daughter’s school.  But she had two teachers like him.

Taylor Mali didn’t teach at my son’s school.  And he’s never had a teacher like him.

Taylor Mali is wrong.  What he’s talking about is what a teacher can make, what a teacher should make.  It’s not what a teacher makes unless the teacher does what Mali says a teacher should do.  There’s no guarantee that a teacher will make what Mali says a teacher makes.  Most fail to live up to the ideal.  Miserably.

Same for lawyers. 

There’s no shame in being a teacher.  There’s no shame in being a lawyer.  Taylor Mali’s teacher is all about teaching students.  If he was a lawyer, it would be all about representing clients.  Excellence has become so old fashioned. 

“People think self-promotion is about yourself,” Kaplan told the Tribune. “It has nothing to do with promoting yourself. It’s about promoting others and let that speak for your character. That’s my philosophy.”

“These are just guesses here,” Homann warned the audience at the start of the program, “because no one really knows what’s going on with all of this stuff.”

EVENTUALLY, records showed that the city had bought 45,900 disposable gowns for the jails from July 2002 to August 2007, but many of them never left a central warehouse, said Elizabeth S. Saylor of Mr. Emery’s firm. During that time, 145,587 searches were done on people being held on misdemeanor charges. The city didn’t come close to having gowns for each and every one, as the jail officials had sworn. Shortly after turning over these records, the city conceded that there had been a “pattern and practice of strip-searches.”

Faced with a new lawsuit in summer 2002, officials in the administration of Mayor Michael R. Bloomberg settled that case for $5 million and promised that things would change. No longer would people sent to Rikers Island on charges like fare beating, pot smoking or shoplifting be automatically subject to public inspection of their rectums and vaginas.

“Perhaps naïvely,” the judge, Gerard E. Lynch, wrote five years later, “the court accepted D.O.C.’s representations that, whatever its past derelictions, there would be no future violations.”

“Practically every single person we deposed from the Department of Correction swore that they never have seen a strip-search,” said Richard Emery, whose firm, Emery Celli Brinckerhoff & Abady, brought the lawsuit. “They all said, ‘We give everyone gowns, they go into cubicles, and we search them like the Queen of England.’ 

Many people argue that twitter is an utterly worthless waste of time, premised on the prevalence of twits about what someone had for breakfast or whether they’re off to the grocery store followed by the dry cleaner.  Some people really enjoy such twits.  These are people who get vicarious thrills out of someone else’s chores, a sad bunch at best.

These twits, however, are not the sort that I, or the people with whom I engage on twitter, do.  Not to blow my own horn, but I wouldn’t waste your time reading about the mundane aspects of my life.  They bore me, and certainly would mean nothing to anyone else.  Instead, twitter is used for some fooling around, dissemination of a bit of socially useful information, the occasional rallying of thoughtful and like-minded folks for an important cause such as #HankSkinner, and every once in a while, a substantive discussion of law.

Such a discussion was begun yesterday by Bryan Beel, with David Sugerman jumping in moments later, about whether a prosecutor has a duty under Brady to test all DNA evidence.  A few twits in and Trace Rabern, a New Mexico criminal defense lawyer, who jumped in on the subject of whether the prosecution was under a duty to disclose the existence of DNA evidence and allow the defendant access to test it per Brady and Kyles v. Whitley.  The problem, if it isn’t already clear, is that Trace and I went back and forth in an interesting discussion, but for the fact that we were twitting about entirely different things.

Twitter is fine, sometimes even great, for some things.  Legal discussions are not one of them.  I should have realized earlier that Trace had come into the discussion midway in, and having missed the intro, was working off some midway twits.  Her view of what we were discussing was wholly appropriate, but the problem stems from the shorthand used on twitter that could make a twit appear to be discussing any one of a dozen subjects, or aspects of a subject, and lead one down the wrong path. 

Since I was there from the outset, I should have realized earlier on that we were twitting at cross-purposes. My bad.  Because it was twitter, I was jumping in and out while doing other things, as I expect was everyone else, and neglected to realized what should have been obvious.  Trace apologized for jumping the shark.  I apologize for being a bonehead.  Jumping the shark sounds way cooler than being a bonehead.

This isn’t the first time that misunderstandings happen on twitter based upon somebody coming across a twit that strikes them a certain way.  In fact, it happens all the time.  It has the negatives of other forms of electronic communication, lack of expression, inflection, such that humor, sarcasm, irony, all the good stuff, is lost.  The setup also serves to deny ready access to parts of conversations involving twits from others you aren’t following, leaving twitterers on the outside of a discussion without their knowledge.

Then there’s the big Kahuna problem, that not every idea is well expressed in 140 characters.  But that’s twitter.

Most onliners are deeply enamored with the newest and grooviest forms of electronic communications.  The gurus tell us about the joys and wonders, how they will connect us with our tribes so that we can be authentic and genuine (and ultimately get rich by tribe members sending us vasts sums of money which we, in turn, send back to them in a never ending tribe circle, until the chief of the tribe puts it all in his pocket and moves to parts unknown without WiFi access or gets a new screen name).  It’s invariably positive, leading us down the garden path to digital Nirvana.

Sometimes, the new doesn’t always work as well as the gurus say, at least not for all purposes.  I thought you should know.