How often do you get to think about champerty and maintenance these days?  The words ring vaguely from the first year of law school, but they play little role in modern litigation, as they are archaic notions, that some outsider would finance litigation, whether for a piece of the action or other reasons. Those “other reasons” could be a belief in a socially utilitarian outcome, or to vindicate some personal butthurt.

Enter Peter Thiel, the co-founder of PayPal and a billionaire as a result. Thiel had a special hate on Gawker. Not like your hate because it’s such a horrible, disgusting, low-brow online media outlet reflecting our taste for the sordid. Thiel’s hate came from a Gawker subsidiary, Valleywag’s, effort to out him.

“Valleywag is the Silicon Valley equivalent of Al Qaeda,” Thiel said at the time.

Somebody really hated Gawker, and had the money to turn his hate into lawfare. Then came some clown in a bandana, and boom! Continue reading →

It’s reminiscent of a particularly moronic discussion of lawyers acting like “jerks.” Some were simplistic enough to arrive at an easy answer: jerks are bad, so don’t be one. Others recognized that being a jerk can be one tactic in the toolbox. Be one when it inures to the client’s benefit.

The thing is, being a jerk all the time doesn’t make you a jerk, it makes you an asshole. It’s just not necessary. All attorneys should lead with civility and courtesy when initially interacting with opposing counsel. And they should strive to maintain that civility as best they can. But ultimately, the practice of law is not about you or your feelings. The practice of law is about what’s best for your client.

The line between the shallow thought at the surface and the deeper thought below may be thin, but it’s the difference between being effective and being narcissistic, indulging oneself at the expense of one’s client. An ugly exchange in a Las Vegas courtroom put this into context.

A 3rd-year public defender was trying desperately to keep her client from being put in jail on a violation of probation by Justice of the Peace Conrad Hafen.  This exchange followed: Continue reading →

Heroin is a bad drug, a terrible drug. Highly addictive and highly susceptible to overdose, it is not a drug to try for kicks, as it never ends well.  But that’s hardly new, as it was the popular drug of choice before crack became the popular drug of choice. The biggest difference at the time was that crack got users wired, whereas heroin put users to sleep. If they were lucky, they woke up when the heroin wore off.

Yet, that’s not the stupid of which I speak.  Rather, it’s the reaction to heroin as reflected in this Newsday editorial from 1979 yesterday.

Lawmakers nationally and locally are swinging into action to face a crisis that’s terrifying constituents: the skyrocketing number of deaths from addictions to heroin and prescription painkillers.

Nationally, 28,647 deaths were linked to opiates in 2014, and that number gave the drugs a grisly honor: opiate overdoses have overtaken car accidents to become the leading cause of accidental death in the United States.

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Andrew Fleischman is such a killjoy.  Deeply passionate people are kvelling over the Supreme Court’s 7-1 opinion in Foster v. Chatman, where the Court held that Georgia prosecutors exercised peremptory strikes to remove all blacks from the jury.

Among other tactics, the prosecutors had highlighted the name of every prospective juror who was black and marked it with a capital B, with an explanation at the top of the juror rolls indicating that the letter signaled the juror’s race.

Roberts took pains to parse all this evidence and noted that it did not comport withBatson v. Kentucky, a 1986 case that established the test defendants must use when challenging prosecutors’ racial motivations during jury selection.

“Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence,” Roberts wrote, adding that circumstantial evidence about the trial in question must be subject to a “sensitive inquiry.”

Fleischman hates racism. So why is this killjoy not doing his happy dance? Because the win in Foster breaks no ground, changes no rule, offers no guidance.  The happy people like the outcome. The killjoys, like Fleischman, suck the joy (hence the name) out of the win. The reason is that it tells prosecutors to stop putting a “capital B” next to the names of the jurors they plan to strike, so as not to make a hard record of their racism, and then they’re home free. Continue reading →

The first step in the dance is to find someone with the veneer of respectability willing to take the lead. They found him, Bill Koch, who sat on the Tennessee Supreme Court before he took the job of dean at Nashville Law School.  But it wasn’t enough that his judicial and academic glow would blind the critics. He also had to be able to dance, because that was the purpose of the Task Force he would lead.

“The Legislature is not going to pay money for the same old thing,” Koch said. “We haven’t, in the last 30 years, looked at (the process of providing legal services for the poor) holistically.”

The Task Force, from a state where shamelessness toward the 6th Amendment has become an official disgrace, was given a mandate: How to tweak around the edges of Gideon, the duty to provide effective assistance of counsel to the indigent, to create the appearance that they’re doing something.

But there was one proviso: Spend no money. Continue reading →

United States Judge Andrew Hanen has rocked the legal world with an order of shocking, if legally dubious, magnitude.

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction.

Whether the court has the authority to issue an order requiring lawyers working in the Department of Justice in 26 states to take an ethics course is unclear. How many lawyers this involves is unclear, but they weren’t the lawyers who appeared before Judge Hanen and whose conduct gave rise to the order. Continue reading →

The New York Times bemoans the “broken bargain” with college graduates, following up on President Obama’s commencement address to students at Rutgers, who are already starting out at the deficit of being in New Jersey:

In his recent commencement address at Rutgers University, President Obama focused on the noneconomic reasons for going to college. The skills gained in college, he said, are tools to help “make the right choices — away from fear and division and paralysis, and toward cooperation and innovation and hope.”

No, no mention of his imploring the kids not to be such fragile teacups. That’s not the broken promise. This is:

It was an important reminder, well suited to the times and the occasion. But it also came across as if the economic benefits of college were a given. In fact, the familiar assumption — graduate from college and prosperity will follow — has been disproved in this century. College-educated workers have not seen meaningful pay raises, and public policy has failed to address the stagnation.

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In a bit of typical twitter silliness, a truncated discussion broke out following the Stanford Law School CodeX lie-fest. Too mean? Okay, how about circle jerk? Still too mean? Jeez, tough crowd. Let’s try, well-intended but clueless gathering. That’s the best I’m going to do, so suck it up.

One piece of the discussion addressed the self-serving contention that legal tech was the savior of the poor and downtrodden who couldn’t afford legal representation, access to justice, or A2J. I called bullshit.

They wrap themselves up in their white knight armor under the A2J banner, all the while concerned only with whether they can sell their gadget and make a fortune. Don’t be shocked at the hypocrisy and ignorance. These are desperate people, constantly staring failure in the face, in critical need of facile excuses that shift the blame for their ugly, unwanted babies to anyone but them.

How absurd are these self-proclaimed heroes of the poor? When I twitted that if they were serious, they would want serious lawyers to speak at their insular conferences about what law is, lawyers do, clients need, so they would stop creating shiny, worthless gimmicks that fail miserably. The response from the “dumber than dirt” side (apologies to dirt) was: Continue reading →

Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.

“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.”

Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.

The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.

But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.

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In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner.  First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system.

But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer.

To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a private eye, was guided by justice — a highly sought investigator who uncovered key information to help their clients.

But that came at a price: Mr. Dwyer had been paying a police sergeant for information from a restricted law enforcement database, prosecutors charged. And in a sentencing memo this week, the government said Mr. Dwyer’s motivation had been “a desire to enrich himself,” citing his billings of about $500,000 from 2011 to 2014 from public funds used for indigent defense.

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