Hell hath no fury like a clerk challenged.  Anyone constrained to deal with bureaucracy learns this lesson early or learns to spend untold hours waiting, usually only to be told to come back another day to wait some more.  Lawyers, in constant need of the kindness of clerks, come to realize this very quickly.

Even so, there are times when no amount of sweet talk, no amount of sincere kindness, and certainly no amount of bluff, is going to change an unfortunate but immutable fact: the clerk neglected to do something that caused significant and clear harm.  Matt Brown in Tempe found himself in this unenviable position.

Brown’s client was stopped for a DUI in the evil Arizona town of Gilbert, where a blood draw was taken and, as is their local way, summons supposedly sent in the mail after the results come back.

That was my client’s situation when we set up an initial consultation. I filed my notice of appearance as soon as he hired me, and when I called the court that day to see if a complaint had been filed, the lady said they had already issued a warrant for his arrest because he missed his court date. The hearing had apparently been set for the day before. She tried to comfort me by explaining that the judge had just received my notice of appearance and would be quashing the warrant and setting a pretrial conference. She insisted the court had sent my client notice of the hearing he missed.

Continue reading →

One thing New York City has in abundance is shameless union leaders who know what their members demand of them, and do it. Pat Lynch, PBA president, is a master. But corrections union prez, Norman Seabrook, is no piker either.

From Seabrook’s New York Times op-ed, defending his boys after the scathing report on Rikers.

A RECENT investigation by the Department of Justice concluded that a culture of violence permeated the jails on Rikers Island in New York City, particularly the facilities housing adolescent detainees. The report came just a few weeks after this newspaper published its own investigation into violence against mentally ill patients at the jails.

These reports have led many in the public and city government to blame the correction officers at Rikers, and have generated calls for radical changes to the correction system.

Given that the beating of prisoners was done by corrections officers, it’s pretty hard to blame anyone else. Or is it? Continue reading →

When Mark Bennett wrote Victimocracy is for Sociopaths, its broader message seemed abundantly clear:

The hallmark of a sociopath, says [Martha] Stout [in her 2006 book, The Sociopath Next Door], is feigned victimhood. “The most reliable sign, the most universal behavior of unscrupulous people is not directed, as one might imagine, at our fearfulness. It is, perversely, an appeal to our sympathy.”

I have noted before the ascendancy of victimocracy, in which victimhood is esteemed even above merit and victims are given special authority to determine the course of the state.

In the world of those who subscribe to empathy uber alles, everybody’s a victim.

Those who had been criticized went into victim mode: they had been “attacked,” “insulted,” “disrespected.” They inaccurately described things that others had said to make them seem like attacks. Both described the criticism as “bullying.” One had “never been so insulted” as by the criticism.

There is, of course, a different view. Continue reading →

Back when Bloomberg Law kind of existed, former ABA Journal editor Ed Adams came to me with an idea.  Why not try to do a short segment, a one-man narrative of sorts, with a rant on one of the subjects here.

It was an interesting idea, despite my face-made-for-radio issue, so I gave it a try in the solitude of SJ studios. I hated it.  I thought I just totally sucked, so I begged off the project.  I was shallow and un-illuminating, and couldn’t get comfortable flying solo.

After Bloomberg imploded, its main on-air interviewer, Lee Pacchia, decided to start Mimesis Web TV.  I always thought very highly of Lee. Mimesis has a multipronged approach, producing videos for others, law schools and big firms, for example, as well as its own channel of law content for its own use and that of other law sources.  After doing an interview with Lee, he brought up Ed’s old idea about doing a one-man show. Continue reading →

You used to have a right to remain silent.

— The California Supreme Court, People v. Tom

When the Supreme Court issued its Miranda decision, the expectation was that it would prove the end of police interrogations, the end of confessions, as no one, after being given the warnings, would be stupid enough to talk to the cops.  They clearly had their finger on the pulse of humanity.

As it turned out, Miranda has proven to be hugely confusing to people, as has pretty much every rule of law ever crafted.  People regularly complain that their arrest was unlawful because cops didn’t give the Miranda warnings, even though the only remedy would be the inability to use custodial statements at trial. People have a really hard time grasping this.

The Supreme then decided that silence wasn’t silence anymore, anyway, in one of its most ill-conceived cases, Berghuis v. Thompkins, holding the post-Miranda silence wasn’t an invocation of silence, but rather evidence to be used against the guy who didn’t know how to invoke his rights properly. Continue reading →

In a post on Facebook, Charles Belk recounts this crazy thing that happened on the way from a restaurant to his car on Wilshire Blvd, Beverly Hills.  To appreciate it, it’s necessary to know a few things about Belk.

I was a well educated American citizen that had received a BS in Electrical Engineering from the University of Southern California, an MBA from Indiana University (including a full Consortium Fellowship to business school) and an Executive Leadership Certificate from Harvard Business School.

Impressive, certainly.

I was a Consultant for the NAACP, a film and tv producer, a previous VP of Marketing for a wireless application company, VP of Integrated Promotions for a marketing agency, ran Community Affairs for the Atlanta Hawks, was the Deputy Director of Olympic Village Operations for the 1996 Atlanta Olympic Games, was a Test/Quality/Mfg Engineering Manager for IBM and was a Bond Trader on Wall street.

Accomplished, obviously. Continue reading →

Via Grits For Breakfast, the head of the Innocence Project of Texas, and one of the Lone Star State’s most fascinating dinner conversationalists, Jeff Blackburn, ripped criminal defense lawyers a new one:

 “The real cause of unlawful convictions in Texas is indigent defense. … I have never handled an innocence case in which a good lawyer did a good job at trial. Virtually all of [those defendants] have had court-appointed lawyers,” wrote reporter Callie Enlow, “This has made Blackburn deeply cynical about what he calls (in his typical colorful language) ‘a pretty goddamned awful’ indigent defense system in Texas.”

Jeff isn’t the sort of guy to temper his words so that no one’s feelings are hurt. I like that about him, even though others in need of a tummy rub may find him harsh.

This quote is the sort that is likely to piss off a whole lot of lawyers, most notably those who handle indigent defense.  On the one hand, they are treated poorly to begin with, clients often asking if they’re “real lawyers,” assuming that the poor are given access to the third stringers if they’re real lawyers at all.  To borrow from Rodney Dangerfield, they get no respect. Continue reading →

“You come in here with a head full of mush and you leave thinking like a lawyer.”

— Professor Kingsfield, The Paper Chase, 1973

Kevin Twitty, a software engineer “with a hobbyist’s interest in law,” sent an email asking for an explanation of what it means to think like a lawyer.  This isn’t exactly a new question, and others, like Lawprof Nancy Rappaport, have written at length on the question (and from whom I borrowed the opening line above).

The concept of thinking like a lawyer was at the heart of the movie The Paper Chase, which was meant as both homage and condemnation of legal education, and provided the first popular glimpse into the pressure and insanity of becoming a lawyer.

The answer to Kevin’s question isn’t all that hard.  Thinking like a lawyer, at its most basic, is taking a myriad of facts, identifying the salient facts, spotting the issue and analyzing the law as it applies to the issue.  Saying this is easy. Doing it is not. Continue reading →

Ah, that rascally New York Times, trying desperately to make sense out of this crazy world of ours.  In an article entitled “Key Factor in Police Shootings: ‘Reasonable Fear’” they offer a very thoughtful, deeply conscientious explanation of the rules of engagement between the police and the rest of us.

Each time police officers draw their weapons, they step out of everyday law enforcement and into a rigidly defined world where written rules, hours of training and Supreme Court decisions dictate not merely when a gun can be fired, but where it is aimed, how many rounds should be squeezed off and when the shooting should stop.

The Ferguson, Mo., police officer who fatally shot an unarmed African-American teenager two weeks ago, setting off protest and riots, was bound by 12 pages of police department regulations, known as General Order 410.00, that govern officers’ use of force. Whether he followed them will play a central role in deliberations by a St. Louis County grand jury over whether the officer, Darren Wilson, should be charged with a crime in the shooting.

You might get the impression that the use of force, the killing of another human being, is subject to strict regulation.  And indeed, that’s the paradigm, but for a few notable details. Continue reading →

I got a call the other morning from Lenore Skenazy of Free Range Kids fame.  Among the things we chatted about was her concept of “worst-first thinking,” which she saw in Colorado District Court  Judge R. Brooke Jackson’s decision to deny summary judgment to the Cinemark Theater that failed to have armed guards in place just in case a madman with guns happened to drop by to shoot up the place.

The judge there held within the realm of foreseeable the one-in-a-million act of a crazy, because the worst, most bizarre, least foreseeable possibility was, in his view, foreseeable.  Lenore saw worst-first thinking at work.  Notably, Ken White at Popehat thought the judge was correct.

Lenore’s concept is a variation on the physician’s zebra rule: when you hear the sound of hoofbeats, don’t assume it’s a zebra.  Expect the normal, unless there are reasons to think otherwise.  Don’t look to the outlier, the one-in-a-million shot, simply because it’s within the realm of possibility.  Don’t leap to the worst-case scenario when every probability suggests otherwise. It will make your head do crazy things, have terrible thoughts, and react to a relatively benign world in strange ways.

Lenore offers an example: Continue reading →