Jacob Gershman at the  WSJ Law Blog opens his post with a question:

When it comes to regulating the legal profession, why is it that only lawyers call the shots?

“The legal profession is ponderous, backward looking, and self-preserving,” Mr. Moliterno writes. “I recommend a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises.”

To steer a better course, he suggests giving non-lawyers a turn at the wheel. This means, he says, letting them serve in leadership and policy positions at the American Bar Association, which sets the standards and codes of the profession. He thinks state bar associations should also open their doors.

It’s not that Moliterno argues that non-lawyers should be involved in the process. To hear what people outside the legal profession think and experience would be enormously useful to lawyers. Any information that adds to our base of knowledge and understanding is useful. But that’s not what he’s saying. Not by a long shot.

Writes Mr. Moliterno:

Turning to creative nonlawyers presents the most advantageous way for the legal profession to grow and change on its own terms. Creative nonlawyers can predict and manage change that is likely to result from competitive forces. In the United States, changes made by the profession itself are highly likely to dampen pressure for change dictated by government. In the absence of self-reform, change will be effected either by government or the forces of competition.

“Lawyers still function on the state-by-state licensure system. A lawyer cannot walk across the line from Ohio to Pennsylvania and engage in law practice,” Mr. Moliterno tells Law Blog, as an example. “We would either move to a national law license or a very relaxed form of admission-on-motion system, allowing lawyers to much more freely cross borders.”

“If there were some nonlawyer ownership of law firms, or more generally legal services delivery, the owners would find it in their business interests for the lawyers to have insurance and follow the ethics rules,” said Mr. Moliterno, who just wrote a book on a similar theme.

The professor also predicts that non-lawyers would encourage the growth of legal services geared toward middle and low income people. “Entities like LegalZoom and Rocket Lawyer would flourish rather than be sued for unauthorized practice of law. Much more creative systems of service delivery would be pioneered without the resistance of the legal profession,” he said.

When  Tempe criminal defense lawyer Matt Brown decided to go on a walking tour of America for a few months, he probably wasn’t sure what would greet him when he came home. He found out.

For one thing, Matt learned that he had now achieved a perfect 10 on Avvo.  This comes as no surprise, given the strength of the latest award he deservedly won, though his relationship with Avvo hadn’t always gone smoothly.  But now that he looked as fine as Bo Derek, he returned to an office bustling with people who needed him.

At some point after climbing onto the Colorado Plateau, however, the volume of voice messages increased. Not a lot, but a noticeable amount. Many callers’ messages demanded prompt calls back, ignoring my voice mail greetings entirely. When I called, most of them tried to negotiate my non-negotiable initial consultation fee. They became angry when I suggested I might not be the right lawyer for them if they felt $100.00 was an unreasonable amount for an hour of my time. One guy fumed about how rude I was to not hike my ass back to the office and meet with him for free right away. Another guy sent [Matt’s partner] Adrian an email saying I should be fired. Adrian says the complaint is still under review by the firm’s human resources department.

By the time I was done with my vacation, I had scheduled six initial consultations for last week, my first week back. One was with someone who’d called during the first four weeks, but the remaining five were with callers I’d spoken with after more calls started coming in.

What could have caused this sudden surge in popularity?  Matt made six appointments for these “leads” and “prospects” to meet with perfection.

Last week, five people failed to show up for their appointments without so much as a call. When I called them afterwards, I got to hear the full gamut of reasons why people can’t be reached. “The Cricket customer you are calling is not accepting calls at this time.” “The number you are calling is no longer in service.” You name it, I heard it. The one no-show I did reach said he’d hired a “TV lawyer.” He didn’t think I might want to know that he wasn’t going to make the consultation we’d set. The one very pleasant gentleman who made his appointment and retained me was the first consultation I had scheduled. He was a referral from a former client.

That’s one out of six. One who showed. One who retained him. A week ago, I spoke with a fellow who called me after finding me on Avvo.  He had a real case. He had a case that interested me. I explained to him that I do not give free consultations, and he had no problem with it. I made an appointment to see him two days hence. 

At the appointed time, I sat there awaiting this potential new client.  Fifteen minutes later, playing spider solitaire unsuccessfully on my computer, I called to find out if there was a delay.  It took him a moment to remember who I was, and then he apologized.  He told me he retained another lawyer the day before.  I told that was fine, but asked him why he didn’t call me to tell me he would not make our appointment.  His voice turned sheepish, and he responded that he thought that was just the way things worked for lawyers.  Our call was over.

By my calculus, it takes 1000 calls from people who find you on the internet to get one person whose case I would take. The marketeers don’t see this as a problem, and their promise isn’t to get you clients, but “leads” and “prospects.”  What you do with them afterward is up to you, not them. 

But the same people who use the internet to find a lawyer are the ones who are taught by companies like Avvo that lawyers’ time has no value. They teach that lawyers answer questions for free. They teach that a person in need of a lawyer for his public urination case should contact 10, 20, 30 lawyers to find the right one for them. And while they include the caveat buried somewhere off to the side, below the grinning image of the lawyer who is paying to have his advertisement show up on your Avvo page, that the ratings shouldn’t be the sole basis for hiring a lawyer.

But then, who wouldn’t prefer to hire a lawyer with a perfect rating.  Like Matt Brown. Like me.

By my calculations, I will now have to turn away another 999 “leads’ before I hear from a client whose case interests me.  But I can’t afford to waste another hour of my practice on an appointment where the “prospect” doesn’t show.  I have work to do for clients who retain me based on referrals from other clients or lawyers, and the time lost to those who find me on the internet is stolen from me and never recovered.

If I feel like killing an hour of my time, maybe I’ll use it to walk America like Matt.  And when I come home, I’ll listen to my messages and ponder how best to use my time.

If anyone else had hogtied, beaten, dropped on the ground, beaten again until dead, a man named David Sal Silva, there would be a swift response, resulting in the release of video evidence to the media, a perp walk and a press conference about how brave the officers were to take down the perpetrators.  Anyone but their own deputies responding to an call about an intoxicated man.

The beating was horrible.

A half-dozen Kern County sheriff’s deputies were across the street beating a man with clubs and kicking him, she said. So she whipped out her mobile phone and began to video the episode, announcing to the officers what she was doing.

For about eight minutes, Ms. Melendez said, the man screamed and cried for help. Then he went silent, she said, making only choking sounds.

Finally, having hogtied him, a number of witnesses said, two officers picked up the man and dropped him, twice. One deputy nudged the man with his foot. When he did not respond, they began CPR.

 Two people reported to 911 what happened, and that they had recorded the beating. The cellphones containing the videos were seized by detectives before they had warrants. Then one of the videos disappeared.  In the meantime, the officers present at the murder were returned to full duty.

After the horror of this murder and the “disappearance” of the video became the subject of national scrutiny, gears shifted and Kern County sheriff changed his story.

Sheriff Donny Youngblood also announced Tuesday that he asked the FBI to analyze two cellphones taken from witnesses who say they recorded the incident.

“I took the unprecedented step of asking the FBI to conduct a parallel investigation,” Youngblood told The Times. “Our credibility is at stake here.”

Youngblood said he has also placed the officers on paid administrative leave, a decision made in the last 48 hours, based on information they had received. He said he wanted to ensure the safety of the officers on the street.

The officers involved are Deputies Ryan Greer, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock, David Stephens and Sgt. Douglas Sword.

Since, a  surveillance video has emerged, but like most surveillance videos, it’s not particularly satisfying. The woman who had the video asked that her identity be kept a secret for fear of the reprisal.  The video on the seized cellphone that remains has not been released, but one might suspect that it’s not nearly as damning as the video that has disappeared.  And Sheriff Youngblood says “our credibility is at stake here.”

The isn’t a post about the horrific beating, murder, of David Sal Silva.  This isn’t about the warrantless seizure of cellphones with videos of the murder. This isn’t about how the deputies were returned to duty rather than arrested, or how they are now on paid vacation while the investigation spins in circles.  This is a post about salvaging credibility.

It appears that Sheriff Donny Youngblood, by calling in the FBI to figure out what happened with the disappeared video, thinks this is going to salvage credibility.  After all, doesn’t it show that he isn’t concealing the evidence of his deputies having murdered a man?  Hasn’t he opened his doors to another law enforcement agency, a credible agency, and by doing do shown that he is not engaged in a coverup?

What invariably comes from discrete incidents of outrage such as the murder of David Sal Silver, the taking of the videos, the disappearance of the videos, the restoration of the cops to the street and the reaction when the cops finally come to grips with the fact that the nation is watching, is a crisis management strategy that seeks to test how badly people want to not confront the terrible things that can happen. 

When Youngblood seeks to salvage credibility, he’s not being forthright.  What he’s really saying is he wants to see what it will take bring the public back to his side, to calm down, close their eyes and believe once again that the police are their friends.  It’s not trust, but stopping the loss of credibility before trust is gone forever.

There is nothing the FBI can do now, even if we assume they can restore a deleted video, that will change the underlying culture of this Sheriff’s department that made seven deputies think they were entitled to kill a man, made someone else think they could make the evidence disappear, and made a sheriff think he could put them back on the street and no one could stop him.  Even now, with the witness statements and the surveillance video, the best Youngblood can come up with is trying to salvage his credibility by asking the FBI to conduct a parallel investigation.

It’s not that David Sal Silva was the first man to end up needlessly dead on the street at the hands of law enforcement, or the first time officers roughly handled the citizens who had evidence of a crime, or the first time evidence of a murder by police mysteriously disappeared, or the first time the perpetrators of a crime were given their guns and shields back to protect and serve, or the first time they were later given paid vacations.

It’s also not the first time people read, saw, heard of all these things and let their minds play whatever games it needed to play to find a way not to confront the inescapable reality of the situation, that they were seeing the end result of a malignancy that existed and spread deep within the Kern County Sheriff’s Department. 

Will the media or the public recognize that there was no credibility to be salvaged, but just another test of whether they are too fearful, too disconnected, too willing to pretend it isn’t what it is so they won’t have to confront how law enforcement got this out of control, this violent, this evil?  If they fail the test, it won’t be the first time.

Update: The Kern County Sheriff has released the one video that didn’t get disappeared. It shows the second video being taken, the one that ceased to exist once the video came into his officer’s hands.  See them at ExCop-LawStudent.


Update 2:  Sheriff Youngblood announced the good news :

Kern County Sheriff Donny Youngblood said Thursday that a man at the center of a videotaped altercation with deputies died from heart disease — not baton blows.

The county coroner’s office labeled David Sal Silva’s death accidental, adding that the primary cause of death was hypertensive heart disease.

Forget those blows. Forget the beating. Forget that he died in the midst of the beating according to what the video (that has yet to appear) showed.  That was just background to his dying of heart disease, coincidentally while deputies were beating him.

And because that’s not sufficiently incredible and ridiculous, add this detail to the mix:

The deputy warned Silva he would release a police dog on him if he did not cooperate. When Silva continued to resist, the deputy remotely released the dog from his cruiser. The dog bit Silva several times and bit the handler deputy as well, Youngblood said. Silva grabbed the dog by the throat.

So as the dog was biting Silva, he “grabbed the dog by the throat,” which most people would say he held the dog back from further biting him. Most, but not Sheriff Youngblood.

Youngblood said Silva resisted deputies and tried to attack the dog.

That’s the dog version of “he attacked my fists with his face.”  It seems that the effort to salvage credibility isn’t going well.  Not well at all.

While heads are turned toward the other scandals du jour, the Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights has been hard at work trying to ram its Utopian vision of speech down the throats of colleges and universities. If students didn’t read Orwell in high school, they get to live it in college.

Via FIRE, the Foundation for Individual Rights in Education,

In  a letter sent yesterday [May 9, 2013] to the University of Montana   that explicitly states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private. 

The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature'” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished. 

Ever the evil genius, Ann Bartow of Feminist Law Profs, who I’m sure comes to this symposium with an open mind, makes a pre-emptive attack in her opening post:

Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It’s hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is no currently such thing as the “safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution” that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I’m doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.

By the mere act of linking to the CCR posts, others (myself included) are “aggressive bullies, nasty haters and monetizing opportunists.”  Bartow’s never been one to tolerate any opinions other than hers, and she is well rehearsed in the art of simultaneously painting herself the victim even as she lashes out.

The appeal of the rhetoric is self-evident. After all, who wants to be an aggressive bully or a nasty hater?  Or for that matter, who wants to be a sexual harasser on a college campus because he asked a girl on a date and was not only rejected, but criminalized.  The possibilities are endless.

As insane as the CCR movement seemed at the time, particularly in light of its frontal assault on otherwise well-established rights such as free speech, the imposition of campus speech codes is not only insidious in itself, but the precursor to clearing up the neo-feminist angst online. 

After all, if they teach the males while in college that they are sexual harassers based upon the feelings of any potential hearer or seer of their male nastiness, chances are pretty good that they will conform their conduct to avoid being labeled an outcast or criminal, and carry that conduct over to their use of the internet.  It may take time for the newspeak mindset to filter through male society, but the hope is it will happen.

And similarly, with the DOJ and DOE on board with the evisceration of free speech in the name of delicate feelings, it becomes a baby step to push this view of sensitivity into other areas of life.  The workplace is already a lost cause.  The internet is just down the road apiece.

Even though these campus speech codes may not seem to affect many of us directly, though it could very well affect our children, the failure to recognize where this is heading and how it may impact general perceptions of “propriety” when it comes to free speech now may well prove disastrous later.  Ten years from now, merely writing this post could spell a ten year mandatory minimum for me, though I suspect it will be digitally burned before any delicate eyes might see it and suffer unpleasant feelings.



 

Many of us have wondered whether the person with the handicapped parking permit is really handicapped or just enjoying the perks of using one of the usually empty spaces close to the door. This same thought seems to occur fairly regularly to police when they come across a person in a wheelchair. After all, it’s so much cooler to roll around than walk.

In Rochester, New York, two cops were doing their important law enforcement duty of “clearing a corner,” when they came across a less than compliant 52-year-old Benny Warr. Good name, right? Warr was in a wheelchair, which naturally raise suspicions immediately.  According to the Democrat and Chronicle :

The incident occurred the evening of May 1 near Jefferson Avenue and Bartlett Street and involved 52-year-old Benny Warr. The video — taken by a bystander whose identity has not been confirmed — begins with Warr being physically taken to the ground from his motorized wheelchair but does not show what preceded the incident.

Police say the officers were clearing a corner, and that Warr was arrested for disorderly conduct and resisting arrest.

The word out of Rochester is that Warr was waiting for a bus when the officers ordered him to get lost. Warr was disinclined to do so, and let the officers know in appropriately unpleasant language. They did not react well.



Naturally, which is defined as there being a video so the Rochester Police Department can’t deny this happened or explain that Warr made a furtive gesture compelling the police to engage in a dynamic response for officer safety, an internal investigation is being pursued, according to Sgt. Justin Collins, and the cops hope that Warr will be a willing and compliant witness. Because, well, his experience with the Rochester police has gone so well up to now.

But one thing is clear. Warr needed the wheelchair. And as for any thoughts about whether those people parking taking the really cool handicapped spots are fakers, remember that not all disabilities are visible, and even if they are trying to beat the system, it won’t kill you to walk the extra 20 feet anyway. Don’t be a hater.

H/T Don Thompson

Harvey Silverglate of Three Felonies A Day fame has an op-ed in the  Boston Globe to remind us of why the FBI does not subscribe to the meme of without pics, it didn’t happen. This will come as a shock to many, but the FBI has a policy, an actual written policy , forbidding agents from recording interrogations.

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

This is where an appreciation of what happens is a bit more difficult to appreciate.  We can picture, for example, an old time steno sitting there, taking copious notes to precisely record what’s being said, but that’s not the case. There are two agents, one doing the talking and one doing the writing. The one doing the writing puts on paper the things he decides he wants to put on paper.  It goes something like this:

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went “constantly.”

See what he did there? Funny, right?  Unless you happen to be the person being interrogated, in which case there’s nothing funny about it. I have a permanent bruise just below the elbow where clients squeeze while whispering in my ear, “that’s a lie, that’s not what I said.”  Ah, reality versus truth.  It may not be what really happened, but whatever is written on a 302 is truth in a United States Courthouse.

And if it’s bad in more pedestrian cases, it’s worse where the subject matter is sophisticated or industry jargon is involved. The substance flies over the agent’s head, so that the only thing understood, and written in permanent ink, is “guilty, guilty, guilty!” There is no nuance on a 302.

A recording can be subject to dispute. A 302 is not. The defendant is placed in the untenable position of engaging in the proverbial “pissing match” with the agent over what words were spoken, and the spray stings. Whether it’s a 1001 violation or obstruction of justice enhancement, there is a price to be paid for dispute. Sometimes it’s worth the risk, but only because the option of letting it slide is so onerous that there is no choice.

As Harvey concludes, the FBI’s choice of not recording interrogations shouldn’t entitle them to a presumption of credibility. Indeed, it flies against everything that we know to be true, that they can easily record and thereby provide the court, defense and jury with an indisputable record of what was said.  

And yet, they don’t and it doesn’t seem to bother much of anybody. Well, except the defendant. But then, it’s not like he matters, since he’s “guilty, guilty, guilty!”  After all, the 302 says so.

H/T Radley Balko

Via Ed at  Blawg Review (yes, the rumors of his demise have been greatly exaggerated).



An interesting perspective, if one doesn’t mind doing a lot of squinting when looking through rose colored glasses.  It brings to mind the adage, when you hear the sound of hoof beats, don’t assume it’s a zebra.  On the other hand, if it gets you through the day, assume whatever works.

If I had to choose between government without newspapers or newspapers without government, I wouldn’t hesitate to choose the latter.

–Thomas Jefferson

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

What distinguishes this story from the everyday accumulation of phone records, or otherwise private information that the government feels compelled to obtain, is that it happened to one of the most significant news organizations in the world, and that it happened to one of the most significant news organizations in the world.  No, the repetition wasn’t accidental.  I’ll explain.

Should the government have done this to you, or me, this would not be a headline.  What happens to our lives, our privacy, our world, may matter a great deal to us, but not so much to others, and certainly nothing to the AP.  But what happens to the AP constitutes a “massive and unprecedented intrusion,” according to the AP.  That’s because it happened to them.

But then, the AP is, by every definition, the Press, with as capital a “P” as one can type. It is the fourth estate, an organization whose duty, at least in concept, is to disseminate news, information and ideas to the public. This function is so critical to the viability of a democracy that its freedom is enshrined in the First Amendment to the Constitution. 

Among the tools in its arsenal is the ability to publish information provided by unnamed sources, who may be government officials, who reveal things that the government might prefer not be revealed.  This could be the CIA’s involvement in thwarting a terrorist plot, or torture perpetrated by the CIA, or corruption. It could be anything that the public needs to know to exercise our responsibilities as citizens in a working democracy. Without information, even if it’s embarrassing or, as in this case, overly revealing, our form of government cannot work. 

The question isn’t whether AP’s disclosure was inappropriate and harmed covert national security issues. It probably did. But then, what is the question?

According to Orin Kerr, the question is whether the government, using the tools and methods made available to it by law and regulation, are authorized to ferret out the source who improperly disclosed the CIA’s involvement to a reporter.  In other words, from the perspective of national security acting within its lawful parameters, there was a need to stop the leak and they did what they had to do. That it was done to the AP was unfortunate, but that’s where they needed to investigate.

Orin challenges readers to explain where the government violated any of its own laws or regulations in doing so.  The Department of Justice  issued a statement explaining its purpose.

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations.  Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media.  We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation.  Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

This is where things went awry. The government creates its own regulations to effectuate its performance of its responsibilities to us.  Theoretically, we approve of its doing so, since we elect smiling/angry faces to be our voice in government, but since we make such electoral decisions based on overarching interests and at wide intervals, nobody really believes that this reflects a majority approval. It’s just the unfortunate backside to republicanism. You vote the big picture and suffer the details.

In contrast to the regulations, with which in fairness most people would have no problem provided it happened to someone else, we have an interest of constitutional magnitude.  The Attorney General has taken it upon himself to balance “the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

See what he did there? It’s not the freedom of the press versus finding his leaker, but the “fair and effective administration of our criminal laws,” the whole megillah. The criminal law of which he speaks would be the one that prohibited someone from leaking to the press that this was a covert operation by the CIA, because they didn’t want Al Qaeda to know the CIA was on to them. It’s a worthy concern, but less than the “fair and effective administration” of justice. Nobody wants to sacrifice the fair and effective, well you know. But is catching their leaker worth seizing the AP’s phone records?

The government says it is.  The government says it complied with the rules it made up for itself. The government is sorry it came to this, but fair, effective, well, is important.  The government says it’s important enough to sacrifice some harm to the free press. And they’ve woken the AP out of their complacency, because nobody lost any sleep when it was me or you who the government might target.

One of the most important, most discussed, most controversial and most worthless decisions issued by the Supreme Court of the United States of America turned 50 yesterday. Written by William O. Douglas, it offered a promise of substantive fairness that was breathtaking.  Fifty years later, the joke’s on us.

Brady v. Maryland held that the prosecution violated the due process clause by withholding material favorable to the accused from the defense.  To this day, I imagine Wild Bill Douglas laughing out loud, muttering to his clerks, “let’s see what problems this causes ’em.”  Funny guy, Bill.

In an excellent HuffPo post,  Radley Balko goes through a number of the loose ends of Brady.  The post is entitled Brady v. Maryland Turns 50, But Defense Attorneys Aren’t Celebrating, recognizing that this decision, together with its progeny offered perhaps the best chance our criminal justice system ever had to level the playing field and provide a criminal defendant with half a chance, maybe just a quarter but definitely more than he had before, to challenge an accusation against him by the most powerful government to ever exist on the fact of the earth.  And failed.

“It simply hasn’t worked,” says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. “Brady violations are a system[atic], everyday problem in the courts. I would say they affect a majority of criminal cases.”

“In order to work, Brady relies upon police and prosecutors to locate and identify information that could cast doubt on a defendant’s guilt,” Benjamin explains. “The problem is that those are the people with the least motivation and least ability to do so. If they’re trying someone, they believe he is guilty. So they’re viewing all the evidence the prism of confirmation bias.”

That bias, Benjamin says, can be powerful. “You can have a piece of evidence that is pivotal to establishing someone’s innocence, and police and prosecutors could interpret that same piece of evidence as further proof of the same person’s guilt.”

While many prosecutors are undoubtedly honorable and likely make every attempt to comply with their Brady responsibilities, confirmation bias and a culture of conviction can provide a strong incentive to overlook or misinterpret exculpatory evidence, even unintentionally. With no counterbalancing disincentive, it isn’t difficult to see how Brady violations could become routine.

Over at the Puddle,  Andy Mergendahl pounds away at the myriad challenges to his “plain language” views on legal writing.

Who’a [sic] afraid of legal writing in plain English? A lot of lawyers. Since I started writing about legal writing, I’ve been amazed at how entrenched so many lawyers seem to be against the notion that legal writing should be as easy to understand as possible to the widest audience possible.

But that notion seems to strike fear into the hearts of many, I suspect because it seems to strike at the traditional lawyering culture that in the post-Great Recession economy seems in danger of disintegrating.

Andy’s “suspicious” attempt to rationalize those who don’t see it his way by attributing it to fear, and thereby ascribing fearlessness to himself, doesn’t serve to strengthen his argument. 

The tone of many of the comments, both here on Lawyerist and in other places, reflects what I think is a rejection of the democratic (note the lower-case ‘d’ there, please) nature of writing that any literate person would have a reasonable chance of understanding. In other words, there’s an elitist tone to much of the negative commentary.

That defensive elitism generally falls into one of several overlapping points of view, which I’ve titled in bold below. I’ve included parts of some comments on my posts as examples of those points of view.

• My readers and I are smart, so there’s no need to “dumb down” my writing.


• My clients are paying me to write impressive documents. That requires fancy language.


• I refuse to surrender “good” writing to the witless masses and their spineless apologists! This is all just liberal politics at work!


• Rules must be correct, otherwise they wouldn’t exist. So stop encouraging people to break them!


• You are wrong! I win! Neeners!*


• You’re wrong! You just are! I know this!

Had these been written by, say Brian Garner, I might characterize them as strawmen, but in a gesture of magnanimity and the liberal application of Hanlon’s Razor, no negative characterization is levied.  Despite Andy’s post bearing the banal scent of butthurt, the issue is worthy of discussion.  As Sam Glover  satirically wrote in response to a comment there castigating Andy for his persistence,

You’re right.. We shouldn’t argue about legal writing on a blog about law practice. Totally out of place.

Indeed, blogs about law practice are the appropriate place to argue about legal writing, and so I champion Sam’s cause.

The problem with Andy’s approach is that his basic premise is deeply, irreparably flawed. Andy explains his point of view:

[L]egal writing should be as easy to understand as possible to the widest audience possible.

A very egalitarian perspective indeed, but a very mistaken one.  Legal writing serves one purpose only: to communicate an idea as clearly as possible to a judge. Briefs are not novellas, to be read by Court TV viewers with poor reception. Contracts are not magazine articles to be skimmed by those with passing fancy. 

This said, it doesn’t mean that Andy is entirely wrong. Far too often, lawyers grow unduly enamored of words they feel are “lawyerly,” tossing in an errant “wheretofore” because it would take more effort to use more effective transition.  As Andy argues, many lawyers, often with youthful abandon, toss about the words they believe to be more lawyer-like so that their writing appears to conform with their limited grasp of legal writing. 

Also like Andy, they are wrong. Incomprehensible strings of lawyerish words may seem “learned” to non-lawyers, who mistakenly assume that the only reason they don’t have a clue what the lawyer is writing about is their lack of a law school degree, but are nothing more than gibberish. 

These two views, overly simple and overly lawyerish, reflect the polar extremes of the argument, and both are similarly misguided.  Legal writing that serves to clearly and precisely convey the message to the judge is good writing.  Writing that does anything else is not.

Or to put it another way, writing that thrills the masses, moves them, makes them laugh, makes them cry, becomes a part of them, but loses in court, is not good legal writing.  That’s because we are lawyers, and our duty is to present our clients’ cause to the decision-maker as effectively as we can.

Wherefore, your affiant sayeth naught.

* From the Urban Dictionary :