First there were agents. They were virtuous and true, and they made television shows and movies about them.  Remember Eliot Ness? He led the Untouchables, and that’s not a name one gets for being easily compromised. Violent, sure, but never on the take.

But reality offered too many opportunities, and some went bad.  So then there were watchers to watch the watchers. They called them Inspector Generals, and they were virtuous and true. But reality offered too many opportunities for them as well.

It was bound to happen.

From the Federal Bureau of Investigation :

A former U.S. Department of Homeland Security Office of Inspector General (DHS-OIG) special agent in charge and another special agent were indicted in the Southern District of Texas late yesterday for their roles in a scheme to falsify records and to obstruct an internal field office inspection, announced Acting Assistant Attorney General Mythili Raman of the Justice Department’s Criminal Division and Special Agent in Charge Armando Fernandez of the FBI San Antonio Field Office.

The indictment returned by a federal grand jury in Brownsville, Texas, charges Eugenio Pedraza, 49, of McAllen, Texas, with six counts of falsification of records in federal investigations, five counts of obstructing an agency proceeding, one count of obstruction of justice, and one count of conspiracy. The indictment also charges Marco Rodriguez, 40, of Mission, Texas, with two counts of falsification of records in federal investigations, two counts of obstructing an agency proceeding, and one count of conspiracy.

According to the indictment, in anticipation of the inspection, Pedraza allegedly directed Rodriguez and other DHS-OIG employees to engage in a scheme to falsify documents in open criminal investigative case files, including numerous investigations in which DHS employees were suspected of participating in the unlawful smuggling of undocumented aliens and/or narcotics into the United States.

Psst. Wanna buy a brief?

A while back, I had a debate with Peter Friedman of Case Western Reserve Law School (whose post has since disappeared down the black internet sinkhole, but whose words live on in the comments to my post) about the lawyer as plagiarist.  My argument is that a good lawyer crafts the argument, the rhetoric, the point with which we seek to persuade the court.  His was: why reinvent the wheel when you don’t have to?

There are now businesses that send blind emails to lawyers offering to do the research that clients believe they are paying us to do.  Outsource and leverage, using some otherwise unemployed kid in a boiler room to do research. Maybe the kid is a lawyer. Maybe not. Who would know, since it’s all virtual. Then charge it off to the client as if you did it yourself, and making money on the spread between what you pay the virtual research company and what you can get out of the client.

Of course, no one forces a lawyer to leverage the outsourced work, and there is no rule that the savings can’t be passed along to the client. But then, if the work is going to be done by some faceless, nameless basement dwelling drone, why does the client need you?

Another alternative has appeared in the cottage industry of business feeding off the carcass of the legal profession called Briefmine.  I was invited to give it a look by its founder, Harry Zeitlin, who, to his credit, took a big risk letting a curmudgeon like me into his shop to look around.  That said, I didn’t like what I saw.

Briefmine is a highly descriptive name. The business model is to take other people’s briefs, put them online in searchable pdf format, and sell access to them.  From my quick spin through, the briefs now in his library come out of the 9th Circuit, Supreme Court and about 14 state jurisdictions. I suspect Harry will be adding whatever he can if this pans out. If you’ve filed a brief in one of these courts, what Harry is selling is your work product, your intellectual property. Your brief.

The interface itself reminds me of searching Lexis back in ’93, neither pretty nor easy to use, but if you put in the effort, sufficient to get the job done. As with all legal searching, it suffers from the limitations of language, binary in approach and dependent on searching for the language the lawyer used in his brief.  If someone used an odd construction, then no amount of wishful thinking is going to make fuzzy wuzzy happy. But that’s the nature of searching legal databases, so it’s nothing new.

The question that kept rumbling through my mind was whether this would be used as a starting point for research and writing, or a chance to steal someone else’s work and pass it off as your own.  If the former, then it’s what lawyers have always done, whether from their own prior work, the work of friends or colleagues who shared their briefs or court opinions.

Zeitlin’s explanation of what Briefmine offers takes the high road.

BriefMine provides a database of legal briefs powered by natural-language search. We focus on briefs because we believe that these documents represent the perfect medium for jump-starting the research process. Briefs highlight the main argument a lawyer makes throughout his or her case. By allowing you to find these briefs, we help you locate arguments that are highly relevant to your current work. Chances are that if you’ve found a pertinent legal brief, you’ve found a trove of other valuable information including citations, case law, and rehetoric [sic] that can be used to focus and improve the research you are creating. At BriefMine, we aim to assist you by unlocking the power of the legal brief!

Granted, few of us remember the lesson of Al Capone.  When the G-men couldn’t get him, the IRS could. While we pay a great deal of attention to some alphabet agencies who tend to spend much of their time walking about with guns, we think of the IRS more as accountants in basement offices making our lives miserable by compelling us to give up our hard-earned income so that Congress can squander it their way.

But the IRS has its own law enforcement arm, and they can be just as intrusive as anyone else.  Via Hillicon Valley :

The Internal Revenue Service (IRS) has claimed that agents do not need warrants to read people’s emails, text messages and other private electronic communications, according to internal agency documents.

In a 2009 handbook, the IRS said the Fourth Amendment does not protect emails because Internet users “do not have a reasonable expectation of privacy in such communications.” A 2010 presentation by the IRS Office of General Counsel reiterated the policy.

The IRS has now responded by sending us 247 pages of records describing the policies and practices of its criminal investigative arm when seeking the contents of emails and other electronic communications.

Luckily, the Fourth Amendment still protects against unreasonable searches by the government. Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.

Unfortunately, they are also aware of geography and jurisdictional limits.

However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

After the grandeur of the #ABATechShow, followed by the mutual admiration of Legal Marketing Association’s #LMA13 conference, I’ve been deluged with new and increasingly more curious efforts by social media gurus to get me on board the tech marketing train. As Heather Morse wrote immediately after the Vegas convention ended, what happened at LMA won’t stay there, much to my regret. 

One such effort was an email from Lucy:

Hi,

We’re currently looking for new content for our blog bloglegal.co.uk/
and wondered whether you would like to contribute any posts for free?
Blog Legal has only recently been setup and our aim is for it to become a
place for those with a keen interest in the law to express and share their
views and opinions on any high profile cases or legal matters.

If you do have any content that you would like to publish, or wish to
discuss any ideas, email across your suggestions and we can discuss them in
more detail.

Kind Regards,
Lucy

You can begin your search for a criminal defense lawyer online.  The American Bar Association is the largest voluntary professional organization and is the primary voice of the rule of law in the US and around the world. ABA recommendations can be trusted.

Using the ABA or seeking referrals from your local law school or non-profit legal center will eliminate most blunders you may make trying to find a criminal defense lawyer on your own, through a phonebook, through friend or family referrals, or through other online or prepaid legal plans.

Always do a thorough background check of the lawyer you select using the ABA, the better business bureau, other professional legal organizations, local law schools and the Chamber of Commerce.  Do not be afraid to ask lawyers you are considering to provide you with case outcomes for other clients charged with the same criminal offense you will be facing. Also ask for client references-references you can speak with in person.

San Diego Police Officer M. Reinhold, likely feeling vulnerable and angry that he was forced to go out in public wearing shorts rather than more appropriate calf-height leather boots and jodhpurs, had a peculiarly low threshold for fear.  Or perhaps cellphone phobia, an ailment that disproportionately afflicts police officers.

Via Carlos Miller at Photography is not a Crime, Reinhold, seized with fear, seizes the vicious cellphone weapon.



Never forget the First Rule of Policing:

In the video below, Reinhold tells his friend that they are trained by the police department to suspect that cell phones can be converted into guns.

He also said that “officer safety” trumps the Constitution, meaning they can claim they are fear for their lives while they throw you in jail for any lame excuse.

“There may be some issues here with this guy. He might have been getting to be a little too hostile for the cop’s liking.”

Von Helms said it does not appear that Pringle’s First Amendment rights were infringed upon and added that the officer was probably in the right.

As  Ken White and Adam Steinbaugh have chronicled, websites based on the business model of posting naked, nonconsensual photos of people, particularly with sufficient personal identifying information so that sick people can find them, is one of the most disgusting and offensive things the internet has borne.  And it seems there is no shortage of sick people on the internet.

These sites, delightfully called “revenge porn,” attract a crowd for whom few of us have any sympathy. Whether owner, poster or viewer, there very existence is a commentary on humanity. And so a law to prohibit their existence, the harm they do to the people whose image is posted for all the world to see for a few dollars for the website owner, who can charge them to remove the taint, the momentary hatred of a spurned lover, the diseased interest of some loser whose sex life exists only on a computer screen, probably wouldn’t upset too many people.

And yet, the effort in Florida to create a felony raises issues.   Eugene Volokh raises the question.

A Florida bill would ban “knowingly transmit[ting] or post[ing]” to any web site, a “photograph or video that depicts nudity of another person” coupled with “personal identification information” of that other person, “for the purpose of harassing the depicted person or causing others to harass the depicted person.” “Harass” is defined as “to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose.”

But I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

The trial of Floyd v. City of New York, the stop and frisk case, continues in the Southern District before Judge Shira Scheindlin with the appearance of a star, the just-retired Chief of Department, Joseph Esposito.  It wasn’t that he was necessarily a star witness, but to be a three-star Chief in a department that rivals the armies of medium sized nations is to be a star. It shines less bright, though, under Police Commissioner Ray Kelly, who doesn’t like Espo too much and has  marginalized him from the real power of ruling the department.

Still, as a witness at trial, in a courtroom with everyone’s eyes on him, it was Espo’s moment to shine again, to show the world why he was worthy of commanding the troops, controlling tens of thousands of weapons pointed at the heart of New Yorkers.  This was Espo’s moment to seize the stage, explain in small words why the NYPD was saving the City from rape and pillage, and emerge the hero.

Though the question asked was narrow and direct, no mere lawyer could control Espo. Via the New York Times :

“That increase is all on your watch?” a civil rights lawyer, Jonathan C. Moore, asked, referring to the rise in police stops, which spiked to 533,042 in 2012, from 97,837 in 2002.

“Yes, it is,” Mr. Esposito responded, “as is the 40 percent decrease in crime during my time.”

Zing.  Except unlike the deference shown a police witness in most criminal trials, Judge Scheindlin wasn’t about to let her witness give the same speech that wowed them at the old age home.

But by then, the judge, Shira A. Scheindlin, had heard enough, saying that Mr. Esposito’s answer was “turning into a narrative, otherwise known as a speech, and I am not here for that purpose.”

Smack. The questions of Espo focused on whether anybody at 1 Police Plaza gave any thought to the hundreds of thousands of black and Hispanic youth who were stopped, searched and released after being subjected to ordinary humiliation.

“Have you discussed with Commissioner Kelly the toll that the policies that are being challenged here may be having on a generation of black and Hispanic youth?” Mr. Moore said.

Mr. Esposito responded, “I discussed the issue of stop, question, frisk with Commissioner Kelly and those issues may have come up.”

But details were not forthcoming.

After a decade, half a generation growing up with the understanding that walking outside was forfeiting one’s right to be left alone, had no one in this middling army given any thought to whether something was amiss?  Espo had an answer, a few good sergeants.

One line of defense, Mr. Esposito noted, was the sergeants who were on the streets checking up on their officers. “Our sergeants are the best in the nation, the best in the world, actually,” he said.

After the cheers from the sergeants union died down, and the rest of the room was unmoved by Espo’s otherwise convincing homage to stripes, he got down to the real proof that the New York City Police Department could do no wrong.

Mr. Esposito also put much stock in the paperwork that officers must fill out after each street stop. That form includes numerous check boxes, each describing behavior that might lead to a stop, like “furtive movements” or “actions indicative of casing.”

Mr. Esposito insisted that a supervisor could conclude that a stop was legal based on reviewing that form alone.

“If it’s filled out properly, it gives you reasonable suspicion. And if you have reasonable suspicion established, then you do not have racial profiling,” Mr. Esposito said. “It’s as simple as that.”

A checklist. The holy grail of grocery clerks. Check off a few boxes and, bingo, reasonable suspicion is established.  “It’s as simple as that.”

While the Floyd trial has offered more insight into the working and thinking of the NYPD than perhaps any before it, even the scandals like the Dirty 30 or the Knapp Commission, this may be the testimony that provides the deepest understanding of the failure to grasp what’s at risk when cops roam the street under the leadership of a guy like Espo. 

With his three stars, he was a “near-mythic figure” in the NYPD.  Yet on the witness stand, he revealed himself to be an errand boy for grocery store clerks, who thought a checklist was real.  “It’s as simple as that.”  They so adore checklists.  Check the right boxes and all is well with the world.  There is no better proof than a checklist.

What Espo could not have anticipated was that the judge, the same one who wasn’t interested in his elevator pitch and the snappy answers developed from years of being the honored guest at dinners thrown by community groups in Queens who appreciated how the police kept those nasty foreigners from ruining their neighborhoods, wasn’t as enamored with checklists.

But Judge Scheindlin appeared skeptical that the paperwork proved anything.

“Any officer can check off ‘high-crime area’ and ‘furtive movements,’ ”  Judge Scheindlin said, referring to two check-box categories on the stop-and-frisk form.  “You really don’t know much about the stop, looking at the form, do you?”

What happened next isn’t said, but my guess is that Espo sat there, dazed and confused.  As he finally shook off this unfamiliar treatment at the hand of someone who was supposed to understand that he was a Super Chief, a witness to be shown respect, if not awe, I suspect his mind wandered to the checklist he completed when he retired with a pension that would choke a horse a mere two weeks before.  And he smiled, knowing that he was protected by his checklists.

It’s bad enough when a conspirator finds out that his pals have pals who are dealing in hundred kilo quantities of drugs, especially when the defendant is struggling to pay the rent and feed the kids.

But when it turns out that there were never any drugs to begin with, and it was all a reverse sting create by the government to fill a bed at Club Fed for the next 15 years, that’s brutal. But it can get worse.

The 9th Circuit considered this in United States v. Hernandez, via the  California Appellate Report by San Diego Law School prof Shaun Martin. In a variant on the typical reverse sting, an attempt to buy drugs that don’t exist from federal agents pretending to be dealers, this case involved a conspiracy to steal nonexistent drugs from a stash house. While it makes greater sense to attribute quantity of nonexistent drugs to a buyer, does that work when the scheme is to rip off a dealer?

In a unanimous decision by Judge Alfred Goodwin, joined by EDNY Senior Judge Edward Korman sitting by designation on the left coast, the court responds that it has to take a “hard look.”

But what works for fake drug sales doesn’t really work for fake drug thefts.  With a fake drug sale, it is possible for a defendant to prove the he didn’t really have the capacity to buy (or sell) the amount the government allegedly entrapped him into buying.  We can’t, however, say the same thing for fake drug thefts.  As Judge Goodwin rightly explains, “once a thief gains access to the drugs, he or she is just as capable of carrying off one kilogram as ten.”  (Put to one side that carrying fifty kilos might be in a somewhat different category, and that for less muscular criminals, even carrying ten kilos might be a stretch.  Remember:  Lift with your legs, not your back.)

Who says lawprofs can’t be a bit snarky?  Bucking the trend, Martin’s discussion of 9th Circuit decisions is both interesting, funny and incisive, and no doubt makes all the other lawprofs hate him, even though it’s precisely the sort of analysis that practicing lawyers would hope that a lawprof offers.

The set up was that a fed pretending to be a courier let the Hernandez group know that the stash house held 20 to 25 kilos of cocaine, and the group decided to steal it.  Hernandez was very much part of the conspiracy, but expected to be paid for his role. He was in it for the cash, not the drugs, and the amount of drugs wasn’t relevant to his participation.

But the Sentencing Guidelines don’t see it that way, and Hernandez was sentenced based upon the pretend weight of the non-existent drugs he was conspiracy to steal. And so the court held that this scenario demanded a “hard look.”

Here’s the problem:  What’s true for Hernandez is almost certainly true for everyone else as well.  A result that makes the “hard look” the Ninth Circuit creates essentially meaningless.  Judge Goodwin says that Hernandez had the intent to steal the drugs because he joined the plan.  That’s equally true for pretty much everyone who joins a plan, right?  If the undercover or C.I. says “We’re going to steal 100 kilos,” and if the defendant agrees, boom.  Intent.  True for Hernandez.  True for Everyone.

To put it another way, the agent could come up with any amount he thinks he can sell, and that becomes the baseline for everybody, regardless of whether they’re in it for the drugs or driving the getaway car for $100 cash.

So, in the end, we’ve got a facially “hard look” test that, in reality, is going to be satisfied over 99% of the time.

Whether the problem here is rooted in the law of conspiracy or that sentencing has become a matter of drug weight, whether real or imagined, or both, the disparity between the conduct and its inherent culpability and the crushing punishment of 15 years for conspiracy to steal drugs that don’t exist it impossible to ignore. 

Defendant’s culpability is largely the same whether he agrees to steal 5 kilos or 50 kilos of fictional drugs; however, the sentencing guidelines may nonetheless treat these offenses as deserving of radically different punishments, including (but not limited to) cases involving mandatory minimums.  The ability of the government to easily manipulate the quantity of (fictional) drugs purportedly to be stolen also creates, as Judge Goodwin notes, the potential for abuse.

So the 9th Circuit plans to take a very hard look at this before affirming the conviction and sentence. The only real thing about this case is the time Hernandez will spend in prison.

H/T Dr. Sigmund Droid

As regular readers know, I am neither a fan of the extension of law by analogy when it comes to technology nor of the harsh and absurdly confused application of the Computer Fraud and Abuse Act, a law crafted long before Congress had a clue what the future of computers would bring. Ironically,  the push to reform and rationalize the law has so utterly lost its purpose as to fail to fix its faults, but make it harsher in the process. Another excellent example of “be careful what you ask for, because you just might get it.”

With this in the background, the case of Andrew “Weev” Auernheimer is coming before the Third Circuit.   Orin Kerr represents the defendant pro bono, along with a laundry list of well-intended advocates. While the case has received its share of attention, it has been overshadowed by the Aaron Schwarz case and subsequent suicide.  Still, it’s an important case, certainly worthy of attention. Orin sells the facts:

When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad. The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.

The fact that AT&T would not have wanted Spitler to visit those particular URLs doesn’t make visiting the public website and collecting the information a criminal unauthorized access. If you make information available to the public with the hope that only some people would bother to look, it’s not a crime for other people to see what you make available to them.

Further, the fact that an automated script was used to collect lots of information instead of visiting manually makes no difference to whether the visiting was an unauthorized access.

“Unauthorized access” and even “exceeds authorized access” should never have been interpreted to apply to publicly accessible data on publicly accessible web sites. Since they have, then I am convinced that the statute is impermissibly broad, and must be struck down. At the very least it must be rewritten.

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance.  It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching. Hurt no feeling. While it makes the students feel good about themselves, it doesn’t actually do much to help them. Via the New York Times, a study bears this out.

A recent research paper, “Tell Me What I did Wrong: Experts Seek and Respond to Negative Feedback,” in The Journal of Consumer Research, says that when people are experts on a subject, or consider themselves experts, they’re more eager to hear negative feedback, while those novices are more likely to seek positive responses.

While it’s unclear whether the novice/expert distinction is a matter of cause or effect, the point remains that the accepted wisdom of pedagogy is to coddle so as to not hurt feelings and undermine self-esteem.  Some students prefer to learn what they can do to improve, while others can’t bear anything short of validation.

Why is that? One reason is that as people gain expertise, feedback serves a different purpose. When people are just beginning a venture, they may not have much confidence, and they need encouragement. But experts’ commitment “is more secure than novices and their focus is on their progress,” the paper’s authors said. Even labeling feedback as either negative or positive isn’t helpful, said Tim Harford, author of “Adapt: Why Success Always Starts with Failure.” He noted that his karate teacher told him specific things to do, like bending his toes backward or rotating his hips. “It’s not useful to say, ‘That’s really good or that’s really bad,’ ” Mr. Harford said. “We need to separate the emotional side from the technical points.”

I have fond memories of teaching a group in advanced cross-examination, where one young woman, after being critiqued, demanded to know why her approach wasn’t working.  She took the view that her cross was brilliant and effective, though it was obvious to others in the group, and to me, that it was just awful.  While some students can be given specific tips and pointers, every once in a while there is a kid who is just so utterly lacking in the fundamentals that she needs to start fresh. This was one of those times.

After coming up with some nonsensical positive, she was told that her approach was all wrong and she to start fresh.  She was outraged, and persistent in arguing that she did a fabulous job.  She thought so, and that was all that mattered. Following Ellen’s instructions, I tried to be positive and constructive, rather than accurate and nip the problem in the bud. Eventually, I had to cut it off, as the student refused to let go.

From the perspective of instruction, this presented a problem. Her tenacity ate up a substantial amount of class time, at the expense of other students, and she was the only one in the room fascinated by herself. The others wanted to get on with their efforts, because they too were fascinated by themselves. A few in the class were quite good, and they were angry that the limited time we had with them were being squandered by one demanding classmate. Me too, as this was a fruitless discussion and the student was never going to accept the fact that she sucked.

Later, when I had an opportunity to see the reviews of the class by the students, it broke down like this: the student who sucked hated me for being mean, too stupid to realize she was great, and refusing to validate her. The students who were marginal blamed me for letting the one student waste the time they had to get more cross in. The students who showed skill at cross loved me, and recognized the situation for what it was.

As with every opportunity to teach, I learn as well.  What I learned what that some of us are cut out to be kindergarten teachers and others not so much.  I also learned that for some law students, kindergarten never ends, and they demand to be coddled in perpetuity.  Part of the problem is that entitled people hear only what they want to hear, but the other part is that the pedagogy of positivity prevents us from providing specific, meaningful instruction:

While many of us tend to hear what we want to hear, Professor Fishbach says she thinks the problem lies more with those providing the feedback. “The negative feedback is often buried and not very specific,” she said.

Professor Fishbach also said people giving feedback often didn’t give enough information, offered it too late or told subordinates what would happen if they did something wrong rather than what they were actually doing wrong.

For law students, who think this is all about them, their inability to accept specific instruction as to what they’re doing wrong and how they can do it better will ultimately come at the expense of someone else.  If their cross is ineffective, do they think they’ll get to argue with the jury after the verdict? If they can’t muster a coherent argument before the court, will they tell the judge that he’s mean and stupid?

The directions to say something positive first, offer “constructive” criticism (and I use scare quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Of course, while they’re eating their praise sandwich, their client will be munching on American Cheese on white bread in the lockup.