The Line Between Right and Money

Watching one of those new gadget segments on NBC this morning, because ABC is no longer available on Cablevision until they resolve who will get the lion’s share of the next cable price increase, one of the newest “cool things” was a beach safe. It’s a box to store one’s valuable while at the beach. I turned to Dr. SJ and said, “that’s a good idea.” Dr. SJ, as is her wont, disagreed.

“I don’t want to live like that. I won’t carry a safe with me wherever I go. At some point, you have to believe that people aren’t that untrustworthy.”

She can be so naive. For those of you who have foolishly subscribed to Simple Justice, you have endured what I have endured with the deluge of spam comments from backlinkers who bought Angela Edwards’ list of high pagerank URLs that have “do-follow” comments. You’ve read the arguments these backlinkers, as well as Angela herself, make in support of what they are doing. On a forum where , Angela offered more of vision.

Since I’m getting so many emails about it, I thought I’d bring it back up publicly. Folks get concerned when a website doesn’t like links and calls anything done for a backlink “spam”.

This particular site that you brought up, Sonia, is owned by a criminal defense attorney in New York, Scott H. Greenfield. This person, so up-in-arms by what he’s calling “high quality spam” (meaning that the comments are great and on-topic, but he doesn’t like the motivation for WHY the comments are being made) who called me a “scary sick woman” for having my backlinks program had this to say about the Lori Drew case, where the mother of a high school girl caused the suicide of 13-year-old Megan Meier after disguising herself as a teenaged boy on MySpace and luring the girl into a “cyber relationship” and then later telling her “The world would be a better place without you.”

Quote:

New York defense attorney Scott Greenfield had criticized the November 2008 jury verdict on his blog, Simple Justice. “Under the [jury] verdict in the Drew case, the internet is replete with misdemeanants. People provide less than 100% accurate information in filling out their profiles all the time,” Greenfield wrote in a Nov. 28, 2008 post. ”This makes many, even a majority perhaps, of Americans criminals. It’s bad when a law is interpreted in such a way that most people are criminals.”

http://blog.lib.umn.edu/cla/discoveries/2009/10/judge-dismisses-ruling-against.html

Again, if a site is “bristling” at leaving links, don’t leave links on the site. It’s not respectful. But the “spam argument” is ‘in the eye of the beholder’. If a site allows a link then it is to be assumed that folks are allowed to leave a link on the site, regardless of their motivation for doing so. The folks who commented on Greenfield’s blog weren’t even being “inaccurate”. They were simply putting a link into the allowed spot for one.

To her credit, Angela does tell her acolytes not to leave links at a site where they are not wanted, as “it’s not respectful.” Of course, Angela’s advice comes just a tad late. She doesn’t find out before she sells the URL whether her mercenary endeavors will be unwelcome, leaving the “owner” to suffer her advances first, fending off the throngs of backlinkers. It’s easier to say I’m sorry than ask permission, but the harm is already done.

But it’s the failure of her comprehension that speaks loudest. First, she equates “high quality spam” with “great and on-topic” comments. That many, though hardly all, of the comments left by her backlinkers were better than the typical spam comments that blawgers ordinarily receive, doesn’t make them great or on-topic. It merely makes them better than the awful crap typically received. This may be her spin, or the assumption of someone for whom language remains a mystery, but the implication is that comments, even if quasi-relevant, are themselves a sufficient payback for the backlink.

The failure of this self-justification is clear: The deal is cut by the backlinkers alone, without asking the blawger’s permission or approval. They find it sufficient, and I have no say in the matter. Or more precisely, Angela finds it sufficient and collects money by selling my URL. No cut for me, Angela? Don’t I get to wet my beak too?

Her other argument is more intriguing, relying on a little research on Angela’s part to learn what I’ve written on the Lori Drew case. I’m glad she had to work, if only a bit, to learn something, and would hope that the fact that she found such a substantive point might somehow help her to grasp that this blawg (or marketable URL, in Angela’s world) is about substance.

Angela points to my Lori Drew quote to suggest some sort of hypocrisy on my part. I can understand why she might think that, given her limited comprehension and twisted perspective. Granted, this is a somewhat nuanced argument, so it’s understandable that it would be beyond the grasp of a spammer.

Angela simplistically equates doing wrong with criminality. She does wrong, as do her followers. That doesn’t mean I believe she should be imprisoned for it, but it also doesn’t mean that anything not prison-worthy is fine. There are norms of behavior that don’t rise to the level of criminality but are still unacceptable. That Angela can’t understand this is at the root of the problem, and is clear from her rationalization of her behavior. The crux of her position is:

If a site allows a link then it is to be assumed that folks are allowed to leave a link on the site, regardless of their motivation for doing so.

As another backlinker, who also happens to be a lawyer, Victor Medina, noted:

It’s as though people are arguing that they should be allowed to come into your Dunkin Donuts franchise and pass out Starbucks coupons just because you’re open for business and the door is unlocked.

Worse, it’s like they’re coming into your house (since this is not a “firm” blog set up in the hopes of commerce) and demanding that they be allowed to sell your guests life insurance. It’s cheesy, it’s amateur-hour and you have the absolute right to deny them entry (or thrown them on their ass if they get past the front door). I can’t fathom how they think otherwise – and maybe I shouldn’t try.

In short, this goes to the sense of entitlement to take whatever one thinks one can get away with. There’s no issue of propriety or integrity involved. If one can swipe it without getting caught, then it’s perfectly acceptable. Indeed, there is a right to do whatever is in ones pecuniary interest, as long as you can get away with it.

Another backlinker, Jim Patterson (who says he doesn’t nearly as well of Angela and her ilk as she does of herself), writes:

The real question for me is pretty basic. Does the person leaving their link behind also leave value. If not, then Yep! It’s spam!

This is an honest reflection of a fundamental difference in perspective between those on the internet who see it as a purely commercial medium and those who do not. This is where this discussion becomes more consequential for lawyers.

The vast majority of Angela’s spammers are promoting commercial websites. The only purpose for their being online is to sell something, and hence the only reasonable perspective they would have as to what they are doing, and why the internet exists, is commercial. There is no reason why they would know, or care, about the norms that are expected of a blawg like this. It’s just fodder for their marketing efforts. Nothing more.

But some were lawyers. Lawyers trying to enhance their page rank to get on the first page of Google so that when a potential client looks for a lawyer in their niche or area, they will find them. This is what lawyer marketers are telling lawyers they must do to survive. This is the means by which clients are obtained. This is the future of a successful practice.

Is this who you want to be? Is this why you became a lawyer? To be a spammer to get on page one of Google?

While I can’t say that it’s been pleasant deleting posts every morning, and a few times throughout the day as well, I will survive it. But will those lawyers who are selling their integrity for pagerank survive what they’ve done to themselves for a buck? We are at a professional crossroad. Angela’s people sell everything from used cars to viagra. Are you merely another viagra seller?

Dr. SJ wants to believe that people aren’t that untrustworthy. I want to believe that lawyers aren’t. I want to believe that when you step back and look at what you are doing in the name of a buck, at the company you keep, that you will take a deep breath, a long shower and remember that you became a lawyer for a higher purpose than to make the first page of Google.

For those of you have been forced to endure this along with me, I’m sorry. Hopefully, we can salvage something useful from this unfortunate situation, and enlighten some lawyers who have fallen into the clutches of the marketers. Hopefully, some people will chose doing right over money.

Upon Reflection, The NYSACDL Speaks

Closing the loop on the 18b issue, discussed earlier here, President George Golzer has issued this unanimous resolution from the NYSACDL:

NYSACDL unanimously resolves:

A strong and independent defense bar is an integral component of New York’s delivery of indigent defense services. From Hamilton’s defense of John Peter Zenger, to John Adams’ impassioned defense of the British soldiers after the Boston massacre to Clarence Darrow’s defense of Leopold and Loeb, the criminal defense bar has been indispensable to the effectiveness of our nation’s criminal justice system. As New York’s largest criminal defense bar association, NYSACDL strongly opposes any effort by New York City to reduce the participation of private lawyers in the defense of New York’s less fortunate. The implementation of New York City’s Request for Proposal potentially undermines the right to counsel announced by the Supreme Court of the United States in Gideon v.Wainwright in 1963.

NYSACDL vigorously urges the New York Legislature to adequately fund our state’s criminal defense system to comply with the mandate of Gideon.

As I was angrily informed by Board Member Michael Shapiro the other day, after noting that the NYCBA, the Queens County Criminal Bar Association and the NACDL had announced their positions while the NYSACDL had yet to do so:

By the way, what’s your rush for a NYSACDL position in advance of its Board meeting? Is the RFP about to take effect momentarily? Might not debate, thought and reflection be warranted? While you sometimes write first and think later, I would prefer that NYSACDL do it the other way around.

This is the product of their collective “debate, thought and reflection.” A simple “ditto” to the NACDL statement would have worked, but that would have denied the Association to speak its own mind. Now that they have, let’s parse the resolution.

A strong and independent defense bar is an integral component of New York’s delivery of indigent defense services.

Whether this is a truism or a slap in the face to public and institutional defenders, it begs the question “why?” It sounds as if it should mean something, but exactly what that is remains unclear. One would assume, as I must, that they are speaking of 18b lawyers, but it does not distinguish between private criminal defense lawyers and others.

From Hamilton’s defense of John Peter Zenger, to John Adams’ impassioned defense of the British soldiers after the Boston massacre to Clarence Darrow’s defense of Leopold and Loeb, the criminal defense bar has been indispensable to the effectiveness of our nation’s criminal justice system.

Fairly inspirational, in a vague sort of way, how this either distinguishes the need for 18b lawyers from either the private bar (as neither Hamilton, Adams nor Darrow were assigned by the panel) or public defenders remains unclear. Up to now, there is little to suggest that this isn’t a typical backslap for criminal defense lawyers.

NYSACDL strongly opposes any effort by New York City to reduce the participation of private lawyers in the defense of New York’s less fortunate.

We finally come to the meat of the resolution, where the Association, after “debate, thought and reflection,” arrives as the words it chooses to state the depth of its position: Strongly opposes. It’s impossible not to hear Demi Moore’s “strongly object” from A Few Good Men echoing in the background. Is this a clear and unequivocal statement or a tepid compromise? Obviously, stronger language was available for purchase at the gift shop, but these are the words chosen. What follows, therefore, becomes critical to flesh out the meaning of these two words.

The implementation of New York City’s Request for Proposal potentially undermines the right to counsel announced by the Supreme Court of the United States in Gideon v.Wainwright in 1963.

Lawyers are, by skillset, wordsmiths. While it might be said that I’m looking far closer at this than was ever intended, and this is more than likely true, the words do matter. By starting with the word “implementation”, the sentence suggests that the problem isn’t in the concept, but in its execution. Do they mean to say that they are fine with the concept of eliminating 18b, but that there is some unspoken implementation issue that bugs them?

Next, the sentence states that the unspoken implementation issue undermines Gideon. Not that it will undermine the strong and independent private criminal defense bar, but Gideon. This suggests that neither public defenders nor institutional defendants are competent to provide counsel to indigents. It might be worse but for the inclusion of the equivocal word “potentially”, suggesting that there may be no problem at all.

NYSACDL vigorously urges the New York Legislature to adequately fund our state’s criminal defense system to comply with the mandate of Gideon.

What this has to do with the statement isn’t at all clear, since the issue at hand isn’t state funding or funding adequacy. This is likely a toss-in relating to issues from the past, a state defender system, the adequacy of 18b compensation and the fact that the putative purpose of the RFP is to save money.

Normally, I wouldn’t have so cruelly parsed the resolution, line by line and even a word here and there. But it’s what comes when pedantic apologists fabricate excuses for a massive failure in focus and mission. After all other criminal bar associations have made the time to take positions and express them, only one stood silent and confused. It sounds awfully reasonable to claim that it needed time for “debate, thought and reflection,” until one realizes that every other criminal bar association managed to accomplish its mission. Or perhaps all the others acted rashly, acting first and thinking later? Maybe the NYCBA and NACDL are insignificant organizations as compared to the very important NYSACDL?

I doubt that this was what Shapiro meant, but it’s the message that comes from making thoughtless excuses. And it leads to heightened scrutiny when they finally get their act together and take a position.

The better way to view this resolution is to step back and ask, what does it accomplish. On the plus side, it takes a stand against the RFP, which by no means was a given. The NYSACDL has been conflicted in recent years as to who it represents. While it was founded as the voice of the private criminal defense bar, indigent defenders have gained a great deal of influence amongst the Board and officers, making it difficult to maintain a clear vision when internal conflicts of interest abound. When the issue is criminal defense versus prosecution, the answers come more easily than when the issues are intramural.

On the down side, beyond coming late to the party, there is no call for action, nor even a thought that action was in the offing. It’s a resolution that, at its bottom line, says the association strongly opposes the change. Who cares? It offers neither compelling reasons for the position, particularly reasons that might be persuasive to the City, nor a meaningful challenge the change. Did the association suspect that the City thought 18b bar would be happy about it and will now, learning that they are not, drop the change? Does the association believe that vaguely inspirational words are going to change anyone’s mind?

There is serious doubt that the NYSACDL could say or do anything that will alter this situation. It may be a lost cause already. But of the positions taken by the NYCBA, QCCBA and NACDL, it is by far the weakest, least rational and most irrelevant position. That’s what comes, I suppose, from too much “debate, thought and reflection.” Or maybe this is just a horse designed by a committee of very important lawyers.

At least the other associations have demonstrated the will to fight the elimination of 18b in New York City, and with it the resource that sustains the private criminal defense bar. Maybe a lawsuit against the City will fail. Maybe the call for study of the impact of this seismic change on the provision of indigent defense services before the evisceration of 18b will be ignored. Maybe nothing will save 18b. But at least they won’t let it happen without a fight.

Fees and the Internet Client

Brian Tannebaum posts about legal fees, and the factors that comprise what a lawyer is lawfully entitled to charge. As he explains,

People say to me all the time – “the economy must be great for you – people are probably getting in trouble more.” (domestic violence, DUI, theft).

Maybe, but here’s the obvious – when people don’t have money, they don’t have money. When people have no access to credit, they have no access to credit. And when people are looking to save whatever money they don’t have, they pay more attention to where they spend it.

One of the things lawyers are doing, and doing in ways that bear the stink of desperation, to counteract this situation is to try to find new sources of business. Enter the internet. It’s impossible to turn around without someone telling you that you’ve got to be online, have a website, blog, if you want to survive. Other, less ethical or discerning voices, urge lawyers to spam and lie their way to success. One way or another, many lawyers are listening to these voices as the phone rings less and the calendar has more gaps.

Having a fairly strong internet presence, I’ve got some experience with this. Calls come in from people who search for a lawyer online. Many of the calls aren’t particularly relevant, being from distant jurisdictions about cases that I either don’t handle or would be better handled locally. But a few involve the sort of cases that interest me.

The calls pretty much go like this:

Caller: My husband/boyfriend/son/father got arrested and I need a lawyer.
Me: Can you tell me about the case.
Caller: It’s a criminal case.
Me: Can you give me some more information? What court is it in, what are the charges, that sort of thing?
Caller: I really don’t know much more.
Me. I understand, but before I can set up a meeting, I need to know whether this is the sort of case I handle.
Caller: Well, I want to know what you charge.

There’s the real point of the call. And in case you’re wondering, this is the point of almost every call I’ve ever gotten via the internet.

My practice is based on word of mouth referrals. The people who are referred to me already have some understanding of who I am, what I do, how I charge. They come because they seek my representation. This isn’t to say that they aren’t concerned about legal fees. Who isn’t? But they aren’t buying a toaster and shopping around for the cheapest one out there.

Essentially every person who calls me because they found me online, regardless of source, is calling for a price. They may later ask some of the questions that websites suggest they should ask of a lawyer, such as “have you ever done a case like this before?” But that only comes after the primary question: How much will it cost.

Historically, I never discussed fees on the phone, or during an initial call. It made no sense whatsoever, as I could not provide a fee without the requisite case information even if I wanted to. It wasn’t possible. Unfortunately, the internet has changed this.

Imagine receiving a dozen calls a week for people desiring your services, prepared to meet with you and asking for a consultation (note the word, consultation). That’s an awful lot of time spent meeting and greeting. Reading their papers, thinking about what can be done, waiting for them to show when they’re late. Listening to their mother, brother, cousin, friend who is there for support ask an additional 50 or 60 irrelevant questions, then tell you about their legal problems as long as you’re stuck in the same room with them.

And at the end, when you are finally able to give them a meaningful legal fee, the blank stare that says, “I don’t have anywhere near that much money.” It’s not a good way to spend you time.

For lawyers prepared to accept whatever pocket change the client happens to be carrying when they arrive, and isn’t too picky about the types of cases they take on, the internet is the perfect place to build your criminal defense practice. If not, all the hype in the world isn’t going to make that potential client have the resources to pay your fee.

You can hear it from Tannebaum. You can hear it from me. It’s up to you whether you want to believe us. We aren’t saying not to have an online presence, but we’re saying that it’s not all it’s cracked up to be.

Feelings. Nothing More Than Fee-ee-eelings.

Some things need not be explained or justified. Why you love your spouse. Why you prefer chocolate to vanilla. Why red is your favorite color. These are things you feel. That you feel them is sufficient, and there’s nothing more to discuss.

But if you want to persuade someone to see things your way, feelings are useless. Feelings are yours. Feelings are personal. Feelings have nothing to do with logic or reason. They cover up a myriad of sins, since each of us is entitled to feel as we do, without having to provide anyone else in the world with an explanation or meet another’s approval.

Others have their own feelings. They don’t need yours. Aside from the early stages of puppy love, they likely don’t really care what you feel anyway. They are preoccupied with their own feelings.

The distinction is between emotion and reason. The problem is that it’s become a total mashup lately, and the feelers are having some trouble understanding why other people, me for example, don’t respect their feelings. I was reminded of this during discussions of my Slackoisie Litmus Test. While the test worked out wonderfully, providing ample opportunity for people to see the conflict through the prism of their experience and perspective, regardless of which side (if any) they supported. Unfortunately, not everyone was able to appreciate the point of the test.

One commenter assumed that I hate young people, and expounded that this was how I felt. After explaining that I don’t hate young people, and, in fact, care deeply about young people, that being one of the primary reasons why I try so hard to encourage them to get off their duffs, stop whining and become productive members of society, I was informed that I’m wrong. Why? Because, that’s how she felt.

This isn’t the first time I’ve dealt with people who believe their feelings on a subject that demands reason are sufficient. The first it struck me square between the eyes was when I was teaching a CLE, and a new attorney informed me that she felt that she need not be concerned with how her argument played to a jury, as long as she felt it was a good argument. Try as I might, she refused to accept the notion that her feelings were irrelevant, the jury being the decision maker. Though the issue was one of reason, her position was one of emotion. She wouldn’t be moved. That the problem, as I pointed out, was that her satisfaction with her argument didn’t do her client much good when he was convicted. No dice. She still wouldn’t budge.

The beauty of reliance on feelings is that it not only trumps all else, but it requires no further justification. When I explained that her “feelings” were illogical, that they ignored reason and experience, it was like talking to a wall. I was informed that I didn’t get it, much like the old adage that everyone is entitled to an opinion. Except it’s untrue; only those who have a basis for an opinion are entitled to one. The rest are just making noise.

In the olden days, the difference between feeling and thinking were fairly well understood. It’s become commonplace today for young lawyers and law students to believe that their feelings are inherently worthy, a fine substitute for reason, and they are hardly reluctant to express them and demand that you acknowledge them. In ten years, they will look back (hopefully) and laugh (hopefully) at the childish silliness they spouted.

For now, they wrap themselves up in the inherent belief that their feelings, about themselves, about others, about their work, about ideas, are self-justifying. It’s a cocoon that protects them from having to face the fact that they don’t know everything, that their limited life experience has not yet prepared them to comprehend the world around them. Rather than recognize their limitations, they try to squish the world around them into their limited, often simplistic paradigm, It’s far easier to make sense of the world by pretending that everyone else is as limited as them, projecting their feelings onto others, assuming whatever serves their understanding without knowing much of anything.

I was told that I failed to “respect” this young woman because of my failure to understand and appreciate her feelings. I responded that I showed her the utmost respect by virtue of discussing the issue with her. This infuriated her, though she denied it. I treated her like an adult, having a real discussion with real explanations. That it was worth my time to engage in this discussion was as clear a show of respect as one person can give another. If I didn’t respect her, I wouldn’t have bothered to engage her at all.

This was not merely an inadequate response on my part, as far as she was concerned, but an affront. As if I was so arrogant that my deigning to talk to someone as lowly, as inconsequential as her was more than she deserved. She didn’t understand. While she is inconsequential in terms of her agreement or disagreement being of no consequence to me, or to anyone of consequence in my sphere, the most important thing I can offer to her directly is my attention and interest, as shown by my engaging directly in a discussion with her. These are things of value to me, and I gave them to her. It wasn’t enough for her. She wanted to be coddled, to have her feelings shared and appreciated. That I cannot do.

When it comes to your preference for chocolate over vanilla (or vice versa), acceptance decisions as we used to call them, your feelings are a perfectly fine way to go. But when it comes to any idea or position that demands support, or which you hope to convey to another to persuade them that you’re correct, then your feelings have no place. You cannot demand that others ignore reason and logic, or hide behind your (now hurt) feelings to smugly assert that it doesn’t matter what logic dictates, you’re still right.

Spare us your feelings when it comes time to argue your point. Give us your reasons, and be prepared to face the reasons of others. I’m sorry if this hurts your feelings. but that’s how it is.

The Defense Commitment

When a lawyer decides to join the office of a prosecutor, she’s asked to give a commitment. It’s usually expressed in terms of years, that she’ll stay with the office for, say, a three year period before taking the courtroom experience gained and selling it on the open market. When a lawyer decides to defend, the commitment is for life.

There have been many instances where a criminal defense lawyer who seeks a different position, usually elected, later will be attacked for his service. It’s too easy for some mutt without anything to commend him to attack his opponent for defending murderers. You bet. That’s what we do. We defend murderers. Guilty as charged.

And terrorists too, as former head of the Department of Justice’s Office of Legal Counsel, Walter Dellinger, learned to his apparent surprise. This prompted him to write an Op-Ed in the Washington Post :

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

The Department of Jihad. Catchy, right? No, actually it’s awfully juvenile and silly. It’s the sort of thing that comes from the people who wear tinfoil on their heads to keep the gamma rays out. Does this describe William Kristol, the conservative in residence at the New York Times, and Liz Cheney, the apple of Dick’s eye? I would like to believe they lent their name to the board, but don’t really show up for meetings, because if they do, they should be ashamed of allowing such a silly phrase. They could have done better.

Ashby Jones at the WSJ Law Blog asks whether Department of Jihad goes too far. Orin Kerr at Volokh Conspiracy thinks this is the sort of attack that Senator Joe McCarthy would have used, according to Ashby though I can’t find any post there that says this. Jonathon Adler at VC, however, noted Dellinger’s op-ed calling the scurrilous attack “shameful”. And it is. And it should be. But…

There are two sides in our system, the prosecution and defense. While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence. We are, at best, a necessary evil.

We are not welcome in their clubs. Our voices are not sought on issues of substance. When a new regime comes to power in our quadrennial peaceful coup, we are not invited to join their ranks. Indeed, when I once tried to offer my services during a fit of naive optimism to a new administration who claimed a sincere interest in justice, I was privately informed that, talking points aside, criminal defense lawyers were not wanted. We are the lepers of the legal system.

In Dellinger’s case, the epiphany came when his colleague at that radical law firm, O’Melveny & Myers, slummed by aiding the defense of Gitmo detainees. Honest work, but not what fills the firm’s coffers. For Biglaw, defense is where they do pro bono, practice up on seldom used skills and feel as if they are doing something more useful than squabbling over how many options the new CEO will get with his golden parachute. It’s the sort of thing they can point to when others complain that they’re just vultures, sucking money out of large corporations to the detriment of mankind.

That they provide these types of services pro bono is a good thing, and Biglaw has done some great work on behalf of the poor and downtrodden, often in death penalty cases where the right to counsel had long since expired and solo lawyers couldn’t possibly dedicate their energies without guaranteeing the starvation of their children. Many have benefited from these efforts, and that’s great.

But they’re just dabblers. This is something they do between mergers and acquisitions, not in lieu of it. You will never find anyone at Biglaw where black sneakers and hoping that no one notices they aren’t really shoes. They wear suit jackets with working cuff buttons, leaving the bottom one unbuttoned so everyone will know. And they aren’t prepared to be tainted permanently by the pro bono hours spent in the service of criminals.

We’ve been living like this forever, Walter. We do honest work. We are as much a part of the system as any prosecutor. Our contribution is vital, for without us there can be no system. Contrary to the attacks of the ignorant and angry, we do not support crime or terror. We support the Constitution. The NACDL calls us liberty’s last champions. You aren’t against liberty, are you?

Now that someone as mainstream as Walter Dellinger has come to the realization that we are not the slimy defenders of evil that almost everyone in government, and then subsequently in partnership at O’Melveny & Myers, believes us to be, maybe the discussion should go a bit farther than the Al Qaeda 8 and ask why criminal defense lawyers are seen as pariahs by the official people of the bar and government. Maybe we have something to offer government, have the same interests and understanding of a nation run well, run safely, run with honor toward both the law and rights.

Walter Dellinger opened the door to a discussion. Let’s make the discussion real and include all who have been tainted by their service in our legal system, and ask why criminal defense lawyers should be perpetually excluded from positions of power or authority because we’re the bad boys of the criminal justice system.

As The Blawgosphere Turns

Having criticized Legal Blog Watch’s n00b Eric Lipman (no blog link for Eric, because, well, Eric has no blog) for his fashion sense (and myopia), it seemed appropriate to follow up with my own stroll through the blawgosphere, kicking the can in the gutter so to speak.

A few days ago, Ed at Blawgreview sent me a link to another of the new genre of Lawyer scam websites, this mutt called . Why call it that? Because Lawyers So Lousy And Desperate For Business That They Will Pay Some Yutz Like Me For A Listing On My Internet Scam Website would not be a big draw, Sadly, before I posted about this new scam, largely because so much of my time this week has been eaten up with fighting another marketing scam, the backlinks comment scheme, Bob Ambrogi beat me to it. The website claims to be

“an independent authority on the best attorneys at law,” and went to say:

The independent authority evaluates each attorney at law based several identified factors depending on the field of expertise. An assigned experienced research team reviews case history and firm expertise on the targeted field of practice taking into account specialized state variances on the legal issues. The team analyzes information provided by each firm, and compares that against the market of lawyers throughout the state. Once the evaluation is complete, the team compiles the overall data, and assigns each firm a ranking.

So far so good. I decided to check…

Shock. It’s a total scam, listing attorneys as “best” in fields they don’t practice and in states they aren’t admitted. Tell me again how it’s beneficial to the public, to the legal consumer, that there be all these wonderful ways to search for lawyers, while websites and lawyers lie through their teeth about the qualifications and merit? But “we have to advertise” or no one will know we exist, I’m constantly told. If you thought Total Attorneys was bad, they may emerge as one of the cleaner get-rich-quick schemes on the internet.

After all, what’s honesty when there’s a buck to be made. And it’s not like we’re lawyers. Oops. we are lawyers. Never mind.

Over at Concurring Opinions, lawprof Danielle Citron is still pounding the pavement in her quest to turn the free speech issue of online “harassment” (defined as anything that makes some woman feel bad) into a feminist issue. As much as I admire her tenacity, horses across the nation are complaining about the resultant shortage of straw.

This time, the Denver University Law Review has sponsored a symposium to debate the issue. Unfortunately, the trick is to have a debate amongst sycophants, carefully vetting the participants to make sure that no one gets in the door who isn’t wholly wedded to the gender shift. It’s an important lesson for law students, that if you want to win an argument, make sure that nobody who disagrees is around. Smart move, Danielle.

In the meantime, the very nasty, and yet remarkably dubious, trial in the media of 30 year old John Albert Gardner III is proceeding at ABC’s Good Morning America. Gardner is accused of raping and murdering 17 year old Chelsea King, a horrific crime and one which, if he’s proven guilty, surely merits the fullest outrage our system can provide. The piece by Mike Von Fremd, et al., naturally starts out with questions by John Walsh, never one to let proof of guilt precede condemnation, like “Why was this animal out on the streets?” But it gets worse from there.

Former San Diego County District Attorney Paul Pfingst was slightly more objective.

“I am of the view that people who do harm to teenage girls should go to Gitmo and stay there for the rest of their lives and be waterboarded,” he said.

It’s one thing to have a non-lawyer advocate like Walsh ranting, but to have the former San Diego County District Attorney adding to the lynching is an entirely different matter. Bad enough that Lee Stonum, an Orange County PD and one of my favorite commenters here for his glee is making sure to let me know when I’m wrong, shot off an outrage email to Pfingst about his “despicable disregard for the Constitution.” To his (and my) surprise, Pfingst responded:

My comment was that as a parent I would want the most extreme punishment for a rapist killer. The way it was phrased was intended to be so over the top that it would be immediately recognized as hyperbole.

I went on to say that it would be wrong to have a criminal justice system that acted based upon the emotions of the moment. . My point was that anger cannot overwhelm our need to follow the legal processes. I went on to point out that so far we didn’t know a single piece of evidence. Only leaks and rumors. And that he is presumed innocent.

I have long since given up trying to seek corrections from the press.

Nothing like taking the 10 seconds of a quote that leaves the ugliest misimpression, eh Mike? While this serves as a reminder that speaking to the press carries grave risks, it also reminds us that the internet is an unforgiving place, where one out-of-context quote will be repeated enough to wrongly smear someone forever. Even Doug Berman, in his post on the Gardner case, perpetuates Pfingst’s quote. After all, GMA would never lie.

And finally, via Walter Olson at Overlawyered, a truly interesting Reason TV interview with a remarkably youthful looking Eugene Volokh. The best part comes at the end, when Eugene does a rousing rendition of the Phil Ochs classic, Outside of a Small Circle of Friends, accompanied by 9th Circuit Chief Judge Alex Kozinski on the ocarina.

Okay, that wasn’t Judge Kozinski. So sue me.

Taking Down Goliath With A SLAPP

The system may not be perfect, but it’s the best there is. Keep saying this over and over, and it might bring you some comfort if you’re a blogger who criticizes a product manufactured by a major corporation, or spills some information that a wealthy and powerful entity prefers remain confidential, and gets sued. Our perfect system can crush the good guy if the bad guy has enough money to sue.

The problem isn’t who wins in the end, assuming the system doesn’t screw it all up in the process, but who is financially ruined by a lawsuit brought for that purpose alone. Remember, blogging has yet to make anyone fabulously wealthy, and defending oneself costs a few shekels. The party with deeper pockets has a huge advantage in shutting up the party in the right. That’s the American legal system way.

This is why the federal Anti-SLAPP legislation introduced by Rep. Steve Cohen (D-TN), HR 4364, the “Citizen Participation Act of 2009,” merits support. Lawprof Eric Goldman provides the background for SLAPPs, strategic lawsuits against public participation. and why this legislation provides a well-crafted Anti-SLAPP weapon without damaging the right to sue when appropriate.

Effectively, defendants can turn the tables on the plaintiffs, file an anti-SLAPP motion to strike the litigation, and thereby ask the court to end the lawsuit much more quickly than under traditional rules. Second, anti-SLAPP laws allow successful defendants to be awarded their legal defense costs.

Thus, anti-SLAPP laws have a number of benefits: they get meritless cases off court dockets early, they force plaintiffs to think carefully about their lawsuits’ merits, and they make defendants financially whole for improper lawsuits. The laws protect online and offline speech equally.

Key to its effectiveness in stopping suits whose real purpose isn’t vindication of a right but to silence a critic by a deep-pockets plaintiff is the award of legal fees for the successful defendant. How many bloggers have a spare hundred grand in their wallet to toss into beating back a frivolous suit designed to shut them up? Without anti-SLAPP legislation, the best win is still a Pyrrhic victory, and that’s not good enough if, as Goldman explains, if we want to protect the “information ecosystem.”

Naturally, First Amendment Freedom Fighter Marc Randazza has taken up the Anti-SLAPP flag and plans to carry it into battle. At the Legal Satyricon, he and his Satyriconistas (a name that I coined but he claims he did but I really did, no matter what he says) will be providing examples of why this legislation is needed. For those who enjoy the occasional biblical reference, though, consider this legislation the weapon with which David and Goliath had a reasonably fair fight.

While lawyers often argue that it’s not the facts or the law that win a lawsuit, but the party with the best lawyer, the obscure the most important truism. The American system of justice favors the party with the most money. It’s not like they pay the best lawyer with bubble gum and kind words, you know. Anti-SLAPP legislation will level this field, without undermining the ability to bring legitimate suits. It’s time.

And if you get a spare moment, it would be swell if others might post about it to let Rep. Steve Cohen know that we appreciate his efforts, and others in Congress know that it’s okay to take a day off from creating new crimes and do something useful for once.

The New Meaning For 20 and 1

It’s perfectly understandable. Given that many, if they heard a gun discharge, would run as fast as they could toward the nearest Dunkin’ Donuts, there has to be some way to assess whether they are doing their job. And so the New York City Police Department has “goals”, which, to no one’s surprise, means quotas.

The problem, however, was made clear when P.O. Adil Polanco decided that he couldn’t take it anymore, issuing tickets to kids who were doing nothing more than coming home from school, arresting people who committed no crime, stopping and frisking because of the color of skin or the neighborhood of residence. From ABC Eyewitness News :

You can bet that Polanco won’t be getting his gold shield any time soon. The ramifications of his disclosure, supported by the recordings of what is said in roll call when cops don’t make their numbers, are obvious. They confirm our worst suspicions.

At the administrative level, the spin is clear. Police officers, like the rest of us, are expected to work for a living.

One Police Plaza declined our requests to interview the 41st precinct commander. But, Deputy Commissioner Paul Browne said, “Police Officers like others who receive compensation are provided productivity goals and they are expected to work.”

And equally obvious is how the message plays out on the street.

Officer Polanco says if they are just goals, why are officers who fail to make them, re-assigned to different shifts or relocated far from home.

It’s the consequences of not making the numbers or quotas, he says, that forces officers to give out bogus summonses.

And this is where the rationalization breaks down. If more officers were to stand up to the threats, refuse to issue bogus summons or arrest innocent people, the repercussions for failure to meet quotas would end. They would have to, as you can’t have an entire police force on desk duty, or in the Missing Persons Squad, where cops are sent to die. All it takes is a bit of guts and integrity. If not at the supervisory level, where petty ambition blinds cops from honesty, then at the street level where the police officers have to look into the eyes of the kids they bust to meet their quota.

People love to attribute heroism to cops. Most of the time, they call a cop a hero for being in the wrong place when a gun discharges. How about the cop who subjects himself to hatred and ridicule from his brethren in order to protect the public from those who lack the courage to stand up against a wrong? Sounds like a hero to me.

H/T Turk and Mike

Plea Bargaining 101

At PrawfsBlawg, guest lawprof Colin Miller asks what new classes should law schools consider adding to the curricula (noting the correct use of the Latin plural). While the knee-jerk answer for most practitioners might be easily answered by fewer classes, more clinical experience, Miller chose to start the discussion by offering an idea of his own. Plea Bargaining.

My first post is about classes which law schools should think about adding to their curricula. When I thought about this topic, the first class that popped into my mind was a class in plea bargaining. Many law students enter the field of criminal law, and “[p] lea bargaining now dominates the day-to-day operation of the American criminal justice system; about ninety-five percent of convictions are obtained by way of a guilty plea.” Michael O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 409 (2008). Moreover, I would argue that plea bargaining in this country is in a constant state of flux, especially in the wake of the Supreme Court’s opinion in United States v. Mezzanatto, 513 U.S. 196 (1995).

And yet, I would also argue that most law students don’t learn much about plea bargaining at most law schools.

This caught my eye. Would they teach wannabe prosecutors how to overcharge so that they could bargain a plea down to where they really hope it will go? Will they teach wannabe defense lawyers how to bluff? What about the cause and effect aspect of this 95% conviction rate, that an acceptable plea is a by-product of the strength of one’s position rather than some independent goal.

In fairness, Miller really doesn’t mean what he says. He goes on to model his plea bargaining class after an existing one, which is all about the theoretical underpinnings of plea bargaining. It’s got nothing to do with getting a gun charge down to probation rather than a year or two.

But the fact that anyone, especially a scholar, would suggest that plea bargaining is worthy of a class in law school struck me as absurd. That they would have the hubris to believe that they can teach students how to plea bargain, a matter of understanding the local customs, finesse, the viability of trying a case to win, seems outrageous. And it is. Nobody seriously suggests that there be a class on the mechanics of negotiating a plea.

The theoretical approach, on the other hand, is utterly worthless. While it may be a fine matter for academic attention, it’s of no practical use to anyone. Plea bargaining, for better of worse, is a fact of life. Having a deep understanding of why changes nothing. It will never help a young lawyer obtain a better deal for his client. Do the lawprofs think that he can prevail by boring the prosecutor into submission with a lengthy explanation of the historic origins of plea bargains?

I see no issue with a crimlaw professor giving a lecture, one day, on the background of plea bargaining. It wouldn’t hurt lawyers to appreciate why we do it, ugly as it may be. Beyond that, however, it has no legs. Lawyers practicing in criminal law must know how to plea bargain, whether prosecutor or defense lawyer.

The best way to teach someone how to get the best deal is to teach them how to fight the best fight. There is only one magic secret to plea bargaining: A good deal only comes from a position of strength. Teach them how to win, and they will figure out the rest. You couldn’t teach it to them anyway.

Lessons From The Toyota Defense

With Toyota, once the car company that all others aspired to beat, now the poster ~~boy~~ car for defects (and likely the precursor for reliance on electronics where once humans drove), the claims of innocence by Koua Fong Lee have been given new life. Though the story itself has already made the rounds, here’s the high points :

Koua Fong Lee has always maintained his innocence in the 2006 crash. Then 29 years old, he was driving home from Sunday services with his pregnant wife, father, daughter, brother and niece in his 1996 Toyota Camry.

Lee told investigators that he pumped the brakes as he exited I-94 in St. Paul, Minnesota, and approached an intersection, his lawyer, Brent Schaefer, said. But Ramsey County prosecutors claimed Lee had his foot on the gas as he approached cars waiting at a red light.

The car was moving at between 70 and 90 mph when it struck two other vehicles. Javis Adams, 33, and his 10-year-old son, Javis Adams Jr., were killed instantly. Another passenger, 6-year-old Devyn Bolton, was left paraplegic. She testified in a wheelchair at Lee’s trial and later died from her injuries.

Mechanical engineers for both sides examined the car. Both agreed, there was no defect. Lee was tried and convicted of vehicular homicide. He maintained his innocence. He was sentenced to 8 years for his troubles. Suddenly, Lee’s claim, that it was the car, not him, doesn’t look so crazy. Even his prosecutor believes that the case should be reopened in light of new information about Toyotas.

This is an important case for a variety of reasons, revealed only by dint of the fortuitous (for Lee, though not Toyota) turn of events.

Experts can be wrong. An expert is, at best, a person with greater knowledge of a subject than an ordinary person would possess. There are lots of people who claim to be experts. Some are, in a real sense. Some are, in a more generic sense of having more knowledge than the average bear. Some are, only in the sense that they call themselves experts and hope they can get away with it.

Even real experts, those with a substantial amount of knowledge, education, experience in a specific field, can be wrong. They sound very authoritative when they testify. They mean well. They refuse to sell their opinion to the side that pays them, though its usually impossible to wholly separate fee from perspective, but a real expert will never overtly sell an opinion. And yet, there are usually experts with similar, if not equal or better, expertise who disagree with the expert in whole or part. One (or more) has to be wrong.

Get two experts together, however, as happened in Lee’s case, and you’ve got a movement. While one can be wrong, can two? When the experts for both sides agree, everyone in a court room smiles, except the fellow on the losing side of the issue. Everyone else is very happy to have one less issue to decide. Maybe the opinion would be different with ten experts. Maybe even ten experts would all be unable to find the defect. If two experts an be wrong, can ten? We can keep going with this, but the points remains.

Innocent people who lose are punished more harshly than guilty people. Initially, the pay the trial tax, the enhanced sentencing that any defendant pays for asserting his constitutional right to trial and ending up on the wrong side of the verdict. There isn’t supposed to be a trial tax, but we all know there is. But the defendant who refuses to show remorse, the one who, despite the verdict, maintains his innocence, has a special place in the judge’s mind: prison. For a long time. He comes off defiant. He comes off unrepentant. He comes off as dangerous and insolent. He needs a harder smack than the defendant who begs for the mercy of the court. And he almost always gets it.

Stercus Accidit. Lee’s crime was being involved in an accident where people died. When someone dies, people see a crime and demand a criminal. Separate the anger at the outcome from the conduct involved, as we are now able to do in light of the Toyota defense, and this doesn’t appear to have been a crime at all. In fact, the allegations clearly lead to the conclusion that it was a tragic accident, Lee was in his 1996 Toyota with his pregnant wife, father, daughter, brother and niece. Was his care for others so demented that he put them all at reckless risk by driving at ramming speed into other cars? It sounds ridiculous. Now.

Today, a couple of years and an intervening recall of Toyotas later, the conviction looks horribly wrong. It was just as wrong then, but reason was blocked to anger and the lust to find someone against whom the anger could be directed.

The shame is that Lee’s Toyota defense, even now, doesn’t disprove his “guilt”. It might be that the car accelerated unintentionally due to a defect. It might not. The burden now is for Lee to prove his innocence rather than the prosecution prove his guilt. Nobody will ever feel good about this case in light of the Toyota defense. But nobody should have felt good about it before either.