Soon, Simple Justice will be moving to a new blogging platform.  Either that or disappear.  I’ve heard from many of readers in the past week about problems with SJ, that it won’t load, it loads very slow, or the most frequent complaint, that the front page loads but the full posts won’t load at all.

My blogging platform is called Quick Blogcasts from GoDaddy. I dídn’t so much pick it as stumble upon it on February 13, 2007.  That was the day I had nothing to do, so Dr. SJ told me to start a blog to keep me from bugging her about things in the law that I like to think about. It was her way of telling me to leave her alone.

It seemed to be easy enough for a dinosaur like me to use, so I went for it.  More than 6 years later, I still do. But what was a mediocre platform back then has reached the end of its lifecycle.  Having spoken to a few people over the past week at GoDaddy about the problems, one thing has become abundantly clear: they don’t care.  I’ve been told to learn to live with it, as failure happens. In other words, if their product, which they happily charge me for, works, great. If it doesn’t, too bad. Are they going to do anything about it? Nope.

When pages wouldn’t load for me yesterday morning, I called again. I spoke with a nice fellow, who told me that he saw I had already called a few times on the issues and that a file had been opened with the escalation department (whoever that is).  “You should be getting an email about your problem,” he explained.

“An email? I don’t need an email. I need the problem fixed. I need the problem fixed now. I need the platform to work.” An email at some unknown time in the future wasn’t quite comforting. More importantly, it didn’t help. If someone was trying to read a post today, an email in a week didn’t provide any help.

That’s all we can do, he told me. That’s it? I asked. “That’s it,” he replied. And that was it.

I’m a strong believer in inertia.  If it’s not broken, I don’t fix it. But my blogging platform is broken. Worse yet, GoDaddy’s attitude is broken. You can argue with some things, but you can’t argue with the attitude that they just don’t care.  They don’t care if you’re happy. They don’t care if you pay. They don’t care if they keep you as a customer. Once they don’t care, all leverage is lost. And as I was unceremoniously informed by GoDaddy, they no longer care.

The idea of moving to a different platform scares me. I’m very good at using the one I’ve used nearly every morning for 6 years. I know it well, its front doors and back doors, its insides and out.  Learning a new platform doesn’t exactly scare me, but means I will have to start from scratch to learn its subtle ways, it’s tricks and shortcuts.  Most of you young guys will laugh at me for this, but I write, and it just happens to be on a computer.  You know computers intuitively?  I don’t. It took me an hour to figure out how to make my daughter’s iPod work, and that came only after she showed me. My intuitive and yours are probably pretty different.

This time, I plan to put a lot more thought into the new platform. I need to find one that will serve to migrate what I’ve cobbled together over the past 6 years without major problems.  I expect to update the appearance, which many of you enjoy ridiculing as “old school,” which never bothered me a bit since I’m here to write, not to have the coolest looking blog on the block. Heck, I would blog on papyrus if that was what I had available to me.  Changing hemlines for the sake of having something new never interested me.

But I know a lot more now than I did 6 years ago, and I know what to look for, what I want, what you want and what I need. The next time will be a whole lot more thoughtful, and I plan to find the best platform possible. I don’t know yet what that will be, and I’m not soliciting opinions so please don’t offer and force me to use the quote about opinions being like a part of the human anatomy. It’s unbecoming.

So please bear with me as I do my due diligence and figure out where I’m going. I know this platform sucks. I know it’s got problems. My inertia has come to an end and I will be changing. I’m working on it.

It died in 2008, as new lawyers watched in horror as their sellers’ market collapsed. No longer could they dictate the terms of employment. There was no employment. No longer could they explain in the job interview how they needed to be out of the office by 4:30 so they could go to junior’s soccer game or hit the bar for half-price chicken wings.  There were no interviews, and they were more inclined to offer junior as the free copy machine operator. 

And yet, it’s back.  Work/life balance. That fabulous concept that your work as a lawyer takes a backseat to your personal life.

In the  Law Practice Today section of the ABA’s law practice management magazine, a 2010 graduate of Boston College Law School, Victoria Santoro, who has a job, gives advice to the job-lorn:

Work/life balance can be a delicate topic for all young lawyers. Demands on your time come from more experienced and more powerful attorneys, and you will feel pressure to achieve and impress those above you to get ahead. It also has not escaped me that 55 percent of 2011 law graduates were unemployed nine months after graduation. I understand that with the pressure of the job search, and the pressure of a new job, work/life balance might not be the first consideration for many young lawyers. Still, despite wanting to either impress the partners or simply land a job (it will happen), it is important early on to create a lifestyle that you can maintain throughout your legal career. What is work/life balance? Why is it important for young attorneys? And how do you achieve work/life balance without inhibiting your success?

She’s absolutely right, a job will happen, provided you’re adept at using the expresso machine and know the difference between a caramel macchiato and a mocha frappuccino.  Aside from that, there are issues.

Before you begin advocating for yourself in attempts to achieve the ideal, but elusive, work/life balance, you need to know why this is something you want. Using some available statistics on employee engagement and productivity, it becomes very clear why balance is something you should be seeking out. No young lawyer wants to sound like they are searching out the ability to “slack,” so I suggest advocating for the three H’s: happy; healthy; and hopeful. These can serve as your guideposts as you search out flex time, telecommuting, and the other things necessary to achieving work/life balance.

No one disputes that work/life balance will make a young lawyer happier, especially if you don’t really like being a lawyer to begin with. But the argument that happy employees are more productive employees doesn’t translate well from the assembly line to the courtroom.  Embarking on a career as a lawyer begins with the recognition that you are taking on the responsibility of other people’s lives.  This isn’t about how many widgets you can put together in an hour, then wipe your hands and walk away.

But you have things you like to do, prefer to do, more than practice law?  That’s cool, but then you’ve chosen poorly. Law doesn’t happen at your convenience. Judges rarely ask whether the brief they demand tomorrow will interfere with a great band playing at a local club. It’s not wrong that you want to go, but that you enter into a responsibility thinking your good times trump duty.  The client, who sits awake at night believing that there is a professional working diligently to save him from ruin, has things he would rather be doing too.

Achieving work/life balance starts at the very beginning of your career.  Advocate for yourself when you begin at your job. You are in the most powerful position as a candidate after you have an offer, but have yet to accept.

So you are one of the lucky few to get an offer of employment as an actual working lawyer, and the first thing you do, before accepting the offer, is to engage in a sincere discussion with the hiring partner about your need for work/life balance? The next words you will hear are, “Sorry, but we’ve clearly made a  mistake. We will not require your services.”  Yes, this is the most powerful position you will be in as a candidate for employment. No, it’s not really powerful. Nor should you demand a corner office and a new BMW.

Santoro goes on to urge almost-hires to set boundaries, the extent to which you are willing to work given your need for work/life balance, communicate those boundaries so your erst-while employer is properly chastised as to your limits, and to organize.  One out of three ain’t bad.

The first two “suggestions” offered provide the shortest path to the front door.  Predicated on the mistaken belief that a lawyer with an offer on the table is suddenly empowered to make demands, it’s akin to telling your potential employer that you will work when and if it suits you.  After all, doesn’t every employer want to hear that its job comes second to the new-hires’ having a good time?

Santoro’s final suggestion, however, is a good one, and the only one that provides any real hope of actually landing the job while being able to go to Suzie’s dance recital.  Organize.

Organizing your work life and personal life will certainly take the most effort, but the rewards will be large if you take the time to plan.

She’s quite right when she says this will take the most effort, as it requires thinking, which can often cause the brain to hurt.  Plan ahead. Get on top of your work immediately, so that you get it done when time is there to do it properly rather than wait until it’s “due” and your situation is conflicted.  Always stay ahead of the work curve rather than use that free time to update your Facebook status and figure you’ll get to your work whenever. 

That last minute scramble to get the motion done, no matter how sloppy you think you can get away with, because you need to make it to the bar in time for happy hour, isn’t going to satisfy your firm, and more importantly, isn’t going to fulfill your responsibility to your client.  The worst part is that it might not have needed to happen if you hadn’t squandered your time screwing around so that you had no choice but to mail it in at the last minute.

Lest you think that being a lawyer means a life of misery, where your children don’t know your name and you’re forced to pay full price for chicken wings in perpetuity, it doesn’t have to be so at all. Sure, there will be times, many of them, when responsibility to your clients comes before things you would rather be doing. This can’t be helped, but won’t be nearly as much of a travesty if you have a desire to practice law and serve clients.  But with a whole lot of thinking, planning, organizing and hard work, there will still be plenty of opportunity to enjoy your life, watch most of junior’s soccer games and have a relaxing beer with your barrista friends from law school.  Practicing law isn’t the death of a fun life, but it is a responsibility, no matter what the ABA Law Practice Management section says.

While it’s not quite as far as I would go, and likely most of you, a relatively quiet but radical shift has taken place in the writings of George Washington lawprof Orin Kerr. Who cares, you say? I do, for one, but more importantly, you should because Orin is one of the few people who has been on top of computer crime from the outset and, even more importantly, courts have turned to for guidance.

In other words, Orin Kerr’s writing have influenced the approach courts have taken, particularly to the Computer Fraud and Abuse Act and search and seizure of computers, including pretty much everything that incorporates a computer chip and memory into its function. 

As much as it would be nice of the writings and thoughts of criminal defense lawyers had a significant influence on the judicial approach to search and seizure as applied to the new world of computers, the fact is that it hasn’t. At least, not nearly as much as have the writings of scholars like Orin. This is what makes his latest writing important and remarkable.

In a short essay, entitled Foreword: Accounting for Technological Change, Orin takes what can only be described as a radical shift in recognizing the cellphones, which during their brief life-span have become mini-computers brimming with personal content far exceeding anything that could have been dreamed of a few short years ago, should not be subject to the blind application of search and seizure rules that would apply under the “search incident to arrest” exception to the 4th Amendment.  From the summary:

This short essay considers how the Fourth Amendment should apply to the search of a cellular phone seized incident to arrest. It argues that the storage capacity and type of evidence stored on a cell phone justifies a departure from existing Fourth Amendment doctrine. Under United States v. Robinson, 414 U.S. 218 (1973), the Fourth Amendment always permits a “full” search of a person and property on his person at the time of arrest. This essay argues that the Supreme Court should reject that standard for searches of digital storage devices. Instead, Court should adopt the standard that the Court adopted in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.

In my view, sensible guidance for new rules governing the search of digital storage devices incident to arrest is provided by existing doctrine on searching automobiles in those circumstances. Like cell phones, cars are mobile. And like cell phones, cars can store a great deal of personal information. As the Court recognized in Arizona v. Gant allowing a complete search of a car as a routine matter whenever the driver has been arrested permits a search far beyond the rationales of the exception Under Gant, officers can search the car only in two circumstances: first, “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” and second, when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.

While this may still fall a fairly substantial distance from a distinct approach, the development of a new body of 4th Amendment jurisprudence relating to computers that recognizes digital storage as fundamentally different from the seizure of items in the physical realm, that Orin argues against the rote application of extent exceptions based on physical world circumstances that would otherwise dictate which exception applies is a radical shift.  

Orin revisits the rationales, and finds them lacking as applied to computers. This is a huge recognition that computers are unlike anything that existed in the physical world as exceptions to the warrant clause were developed to allow police a ready means of circumventing the 4th Amendment.

Granted, Orin still applies existing law by analogy, which leaves open a variety of argument, such as the content of a smartphone may be of evidentiary value in determining the phone number of a drug supplier, and has yet to go “all in” on the notion that digital storage devices are more akin to personal papers and effects than any other physical objects, the fact that his approach is rationale based rather than rubric based is a significant step forward.

Most importantly, what matters here is that scholarly writings about the relationship of the 4th Amendment to the digital world are evolving, offering hope that the law will eventually catch up with technology and the  public’s oft-mistaken belief that they can enjoy shiny toys and still maintain a tiny bit of personal privacy.

As the trial of “stop and frisk” played out in Judge Shira Sheindlin’s courtroom, a tape made by Police Officer Pedro Serrano last month of his commanding officer made the sounds that everyone knew would be heard, but no one ever really wanted to hear.  From the New York Times :

The commanding officer, Deputy Inspector Christopher McCormack, urged the officer to be more active, emphasizing the need to conduct more street stops. “We go out there and we summons people,” Inspector McCormack said. The way to suppress violent crime, he said, was for officers to stop, question and, if necessary, frisk “the right people at the right time, the right location.”

The officer who surreptitiously recorded the conversation last month, Pedro Serrano, began pressing Inspector McCormack about who he meant by the “right people.” The conversation grew heated.

You know what’s coming. You have to. Black, white or Hispanic, young or old, you already know. You always knew. But now it’s right there on tape.

“The problem was, what, male blacks,” Inspector McCormack said. “And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21.”

Meet the “right people” when you live in the wrong neighborhood.  This is, of course, no surprise whatsoever. After the first few million stop and frisks, there could be no doubt, but it’s different to have the words played out loud in a courtroom. 

Officer Serrano is the second Bronx police officer to take the witness stand in the trial and assert that police supervisors institute quotas that encourage officers to stop people unlawfully. He said he began taping interactions with supervisors in the station house because “they’re asking me to do something that’s illegal, I believe, and I was worried.”

Officer Serrano, who continues to work in the 40th Precinct, said that as a Hispanic man in the Bronx, he himself had been stopped many times. “It’s not a good feeling,” he testified.

Pedro Serrano got into this “discussion” with his C.O. because he wasn’t doing to others what he didn’t want done to himself.  Now he needs to worry about when his Serpico moment may come, having done the “right” thing in the wrong job. 

Bizarrely, Inspector McCormack’s explanation to Serrano wasn’t maliciously intended, a matter of hatred of blacks or Hispanics. It was exactly what most people who rely on what they like to call “common sense” would think, that phrase that takes beliefs we hold but can’t quite justify and gives us a facile excuse to maintain them without feeling badly about our self-deceit.

At first, Inspector McCormack can be heard lecturing Officer Serrano about how “99 percent of these people in this community are great, hardworking people” who deserve to go about their days in peace. But the citizens, he said, were troubled by crime, and he went on to describe how a woman in her 60s was shot coming out of an elevator at 10 a.m.

People are troubled by crime. Who wouldn’t be? Nobody wants to be the victim of crime, and they expect the police to prevent it and protect them. Doing so, however, is much harder than people think, as they want cops to be invisible except when they need them, and then they want them to be magically appear the instant they’re needed and to make correct judgment calls in the face of chaos and confusion.  No, it’s not an easy thing to do for the police.

Somebody got it into their heads that if they just target the “right people” in advance of crime, they could seize control of the streets and make their job better. And most of the other people in the police department nodded their head in agreement, that this was a good idea.  But who should they target?  The “right people.”

That the tactic failed to produce results should have been a clue that there really weren’t any “right people” the race, age, demographic, and in the process of stopping and frisking the “right people,” they were doomed to deprive millions of people of their right to walk down the streets of New York City without being stopped for no reason.  But this was the price they would pay for a targeting the “right people.”  The “right people” would forfeit their right to be left alone so that the rest of the people could feel safer.

My old train-buddy Mike used to argue the point with me, that somebody had to take one for the team. Of course, Mike would never be mistaken for the “right people,” so he was pretty clear that the person who had to take one wouldn’t be him.  That’s what makes stop and frisk to acceptable to so many, that they aren’t the “right people” and, truth be told, can’t get too bent out of shape by the wholesale violation of constitutional rights to a group of people that doesn’t include them.

It’s not that they liked the idea of he New York City Police Department targeting a group of young black and Hispanic males for the purpose of hassling them, stopping them, searching them, without any actual articulable suspicion of wrongdoing. They didn’t feel good about it. It was just the price that had to be paid for safety. and the fact that they didn’t have to pay the price made it all acceptable.

Now that the words have been played in a courtroom at 500 Pearl Street, does it make you feel better about it? Your worst fears are confirmed, but you really never had any doubt before. Forget the argument that the common sensical claim that the cops targeted the right people is wrong, as demonstrated by the abysmal rate of finding evidence of criminality. Forget that millions of stop and frisks have happened with negligible results, where only the most blind fool could hide behind the simplistic “it’s worth it if it takes one gun off the streets.” 

This isn’t just a condemnation of the NYPD, but of the “wrong people” who have tacitly tolerated what they knew to be terribly wrong all these years because they believed it made their lives safer and, well, they weren’t the “right people.”  The police did it for you, and you secretly liked it.  How do Inspector McCormack’s words sound to you?  How does it sound when you’re confronted with your own truth?  Are you proud not to be the “right people” of New York?

The video of foul-mouthed Detective Frank Rende showing St. Patrick’s Day reveler Mark Keyser who’s the boss is nasty and offensive, but Rende’s defense is that his taser, put to Keyser’s neck for no discernible legitimate reason, didn’t fire.



When the best thing you can say about an abusive cop, who demonstrates no reluctance to use violence for no better reason than to bully a kid into submission, it’s not quite an endorsement of his having the temperament and qualities one expects of a police officer.

To his enormous credit, Pittsburgh Mayor Luke Ravenstahl recognized this.  Via WTAE :

There is no question that Oakland police officers Omar Daza-Quiroz and Eriberto Perez-Angeles shot and killed 37-year-old barber Derrick Jones.  They claimed he dropped a digital scale as he was running away from them. They claimed they thought it was a weapon, so they shot and killed him.

Four witnesses to the killing saw nothing in Jones’ hands, but for the sake of argument, let’s assume the cops believe what they claim. So what?

Don’t try to make sense of it. It doesn’t make any sense. Dropping an object, even one mistakenly believed to be a weapon, does not give rise to a reason to kill under any twisted logic.  But then, Jones wasn’t the first person these cops killed. Nor was this the first time these cops were the targets of complaints for misconduct and excessive force. Most would see this as a problem for the cops, but as it turns out, it may prove to be their salvation.

From the East Bay Express :

In addition, records show that there have been 74 use-of-force complaints lodged against Daza-Quiroz alone. There’s also evidence that the Oakland Police Department, because of its failure to live up to court-mandated reforms, neglected to properly track the two officers. Nonetheless, a federal judge ruled last weekend that jurors in a civil trial involving the Jones shooting must not learn about the officers’ troubled histories or know of the department’s failure to correct their behavior.

In her ruling, US District Court Judge Yvonne Gonzales Rogers stated that showing the jurors the seven hundred pages of internal affairs complaints filed against Daza-Quiroz and Perez-Angeles would require a “tremendous expenditure of time.” The judge added that it “would essentially require mini-trials” for each complaint against the two cops, and could be “incomplete, confusing, and misleading.”

There’s just too much.  It would take forever, and who has the time to spend on a trial working over incident of excessive force after incident. Wrap it up guys, we’ve got people to convict, and we can’t waste a courtroom forever on cops.

The problem of a “trial within a trial” refers to allegations of misconduct which the officers deny, and would thus have to be proven, as if the cops were on trial for the collateral conduct within a trial for the primary cause of action for killing Jones.  It’s a problem in that it can tend to cause a jury to confuse the issues of liability for the action before them with liability for the acts of past violence. But it can also be kept under control with appropriate instructions.

Bear in mind, this is a civil action for damages for the death of Derrick Jones, not a criminal prosecution for his killing. The relative rights and constitutional concerns are very different, though a skeptic might think that the only real difference is that the defendants before Judge Rogers are police.  If this were a criminal prosecution, and the defendants weren’t cops, somehow the court would either find the time or figure out an alternative. Courts usually do.

The problem created by this ruling for the plaintiff is that they’ve pursued their case based not only on the killing of Jones, but the conduct of the two officers and the Oakland police department’s apparent refusal to either address the problem of excessive force within its ranks and comply with a decades-old consent degree to clean up the Oakland police.

Before Gonzales Rogers’ ruling this past weekend, Jenkins-Toney had based a substantial portion of her case on the theory that Jones’ death was “an unlawful shooting by two officers that have a high rate of using force during their contacts with the public during their relatively brief stint with the Oakland Police Department.” Perez-Angeles joined OPD in 2007, while Daza-Quiroz signed up a year earlier. The two officers were also involved in the fatal shooting of Leslie Allen during a car chase in 2008, and Perez-Angeles was part of the Tango Teams at the center of OPD’s crackdown on Occupy Oakland protesters in late 2011 and early 2012.

You’ve got to admit, that’s an awful lot of wrong for two cops who came onto the force within the last five or so years. Most cops go their entire career not drawing their weapon. These guys not only drew their weapons, but ended up wrongfully killing two people in their first few years on the job. It’s almost inconceivable that these officers could have racked up so many use of force complaints and killings so quickly, but it’s even more incredible that this ends up working to their advantage.

Of course, there is a fairly obvious alternative to address the concerns about the length of time it would take to present this evidence. The judge could have limited the plaintiffs to introducing, say, five or ten incidents rather than every incident. While that still would deny the jury the flavor of how violent, how out of control these officers were, and how their violence was tolerated, if not embraced, by the Oakland police, at least it would have allowed the plaintiff to make their case.  And it wouldn’t have given the cops a free pass on prior violence merely because there was too much of it.

But Gonzales Rogers ruled that jurors will hear nothing of OPD’s failure to revamp their procedures for dealing with problem officers, the Allen shooting, or the numerous internal affairs complaints against both officers. The judge also decided that documents from OPD’s federal oversight would be too confusing for a jury without expert testimony to explain their meaning, and under the terms of the consent decree, could not be used to prove liability in other lawsuits. “[T]he Court finds that admission of the Riders case documents would be more prejudicial than probative …. Admitting the documents alone, without any context or explanation of their meaning by any witness, has the strong potential to confuse and mislead the jury ….”

After all, nobody wants a jury to be confused or misled to think that the police aren’t doing a great job protecting and serving. And killing.  So rather than pare down the voluminous evidence of violence, the historic evidence of neglect, to a manageable level that serves to provide the jury with the background of the officers and the police department’s ignoring the “red flags” of their violence and potential for violence, let the jurors hear nothing.  That’s the solution when there’s just too much evidence against cops.

Someone posed a question a while back, if you could be absolutely guaranteed that you could commit a crime with impunity, what crime would you commit?  It was a great question, not because it provided the opportunity for people to opine on their favorite crime, but because it offered the opportunity for people to decide whether the only thing that stopped them from doing wrong, from causing harm, was the threat of punishment.

Just because we can get away with it isn’t a reason to do wrong.

Yet the lawyer who successfully won the right of a law firm, Cannon & Dunphy, to buy up adwords in the name of a competitive Wisconsin firm, Habush Habush & Rottier, has volunteer to argue otherwise at Kevin O’Keefe’s  Real Lawyers Have Blogs.  Kevin has earlier argued that regardless of the legality of this scheme, it was unseemly.  The lawyer, Ric Gass, wanted the chance to make his pitch, and he got it.

The purpose of my post isn’t to argue their position (that has been done in the briefs and submissions in both the trial and appellate court) but rather to comment personally and more generally on the issues.

Kevin’s objection to sponsored link marketing is essentially an objection based on its style and that to his taste it is “unseemly” to bid on a word that is another’s last name. Others, such as Eric Goldman at Forbes recently and Will Hornsby of the ABA (whom Kevin has dubbed “the king of ethics and lawyer marketing on the Internet”) disagree.

Lawyers will view the bounds of marketing and “taste” differently, oftentimes influenced by their area of practice. What may be seen as acceptable marketing to the general counsel of a major corporation is assuredly different from marketing in a personal injury litigation or a domestic relations practice. We each have and are entitled to our own “tastes” in the marketing of legal services, and we each have different marketing strengths.

Despite his claim that the post wouldn’t be a reargument of the legal points, that’s exactly what it was aside from his point about “tastes.”  It’s a smart argument to make, and leads me to agree with Kevin that Ric Gass must be a damn fine lawyer. You really can’t argue with “tastes,” any more than you can debate whether vanilla or chocolate is the better flavor.

The problem is that an argument over tastes skips over the primary question, whether we would commit a crime at all before deciding which crime it would be.  After being bombarded with some of the most insipid rhetoric I’ve been forced to endure in a couple of recent posts  challenging  marketing and futurists, it’s hard, no impossible, to be sympathetic to an argument that leads inevitably to the race to the bottom. 

This may come as a surprise to many non-lawyers, but most of us don’t use the limits of the law, or the resources available to us, as a substitute for our moral or professional conscience.  We do what we believe to be right simply because it’s right, not because we can’t get away with more.  We could sue over every slight, no matter how inconsequential, because it’s easy to draft a summons and complaint, yet we don’t.  And we can fashion our “tastes” to suit the greatest latitude that serves our pecuniary interest, yet we don’t.

This goes back to the two professions, both calling themselves lawyers issue, that there will be a group of lawyers who, after learning of Ric Gass’ success, will rush out and purchase the names of their competitors to gain a marketing advantage. Their taste is money, or at least the hope of it. They will do whatever the law allows to get it. Maybe some will do a bit more and see if they can get away with it.

To lawyers inclined to seize every marketing advantage, Kevin’s point, that it’s unseemly, is meaningless. To say it’s about tastes is convenient, but not really accurate. They have no taste. If they can get away with it, they will. Their taste is to take advantage of every opportunity to get business any way they can. 

They know that the public is still years away from realizing that nobody knows you’re a dog on the internet, so they create carefully crafted personas, omit any information that might cause a potential client to pause before calling them, make themselves look like Clarence Darrow incarnate, and then buy up every keyword or competitors name they can think of so that anyone Googling for a lawyer will see them first. This is their taste.

And it can’t be too wrong, given that such staunch defenders of the seemly, the ABA,  backs them up with posts that advise lawyers to forget about such archaic notions as client service and instead “invent the future.”

Inventing the future is great advice. The problem is that most lawyers are not predisposed to this kind of activity. With the possible exception of negotiation strategy, have you ever heard a lawyer say, “I’m not sure how this will turn out, but let’s give it a try and see what happens”?

More often than not, you see lawyers clinging to certainties rather than reaching for possibilities.

Some of us prefer not to blindly court failure when it’s a client’s life or fortune on the line, Few technologists have had to tell a client that they will spend the rest of their life in prison because we gave it a try and it didn’t work out. It’s not a matter of “taste,” but a matter of duty. The law is not a profession of free-wheelers for a reason; other people pay the price for our failures, and we do not have the right to condemn them on a whim.

But the law says that the low road is available to lawyers, and those with a sufficient lack of taste will take it. They will buy into the rhetoric of anything goes, and will tailor their tastes to suit their desire for money.  Once the limits of our professional conduct become a matter of individual taste, there are no limits.

So if you are guaranteed that you can get away with it, what crime would you commit? My answer is none. Your tastes may differ.

To celebrate one of the foundational victories for criminal defendants, Supreme Court Associate Justice Elena Kagan went to the Attorney General’s home at the Department of Justice.  She received no invitation from the Defender General, because there is none. And if there was, his home would be far less hospitable than the Grand Hall of the Department of Justice, a euphemistic agency given that it only houses prosecutors.

From the Blog of Legal Times :

Speaking before a standing-room only crowd in DOJ’s Great Hall with U.S. Attorney General Eric Holder Jr. and former Vice President Walter Mondale, Kagan said the provision of a “Cadillac” lawyer isn’t a right for poor defendants. But they should at least have a “Ford Taurus” defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.

While I love car analogies as much as the next guy, though neither automobile chosen by Kagan as examples are high on my list for fascinating discussion, the comparison was destined to raise hackles. And indeed it did.

Why are poor defendants relegated to a second class defense? Why a Ford Taurus when the prosecution gets a Stealth Bomber?  Why?  Her ultimate point was that indigent defendants aren’t even getting a Taurus now, and that’s inadequate.

“We don’t have the resources to make [a Cadillac defense] happen,” Kagan said. “And I’m not sure if we did have the resources that that’s exactly what we should want.”

But even a Taurus defense is hard to come by, she said.

So what is it that a Supreme Court Justice thinks defendants receive?  A Yugo defense? Maybe an Edsel? If a Taurus is required, and they are only getting a Pinto, do they get a Vega to make up the difference? The problem with analogies is they leave us with some vague sense of comparison without any meaningful standard.

But Attorney General Holder decided to help Kagan out but putting his idea of a good thing into the mix.

During the event, Holder announced $1.8 million in new resources to support criminal legal defense. Indigent defense is in a “state of crisis,” said Holder, who in 2010 launched the Access to Justice Initiative in an effort to make legal services accessible and affordable to all Americans.

A whole $1.8 million? That’s enough to buy a spark plug (at government contract rates) for every public defender in Brooklyn, staving off a “state of crisis” in the spark plug industry, but it won’t scratch the surface of getting poor defendants into Ford Tauruses. Not even old, broken down used ones.

Justice Kagan questions whether a “Cadillac” defense is what we want anyway. The only reason that I can think of for saying this is that it’s too expensive for the taxpayer, to give every indigent defendant a great lawyer with all the bells and whistles that money can buy. It’s a curious concern, given that the prosecution has the police, the option to charge and prosecute and the hearts and minds of the public and the courts.

But the analogy isn’t quite fair and isn’t really fitting.  Granted, Supreme Court Justices have no power of the purse to spread the wealth, divvy up the cars in the lot so that the defense and the prosecution are in relative parity.  They do, however, have the authority to wipe  Strickland v. Washington from the books. They could make the rule a right to effective assistance rather than ineffective, a threshhold that allows for a fouled carb to pass muster.

They can hold that a defendant was denied his constitutional right to counsel when his lawyer sleeps through his trial, fails to investigate, can’t be bothered to speak with his client, demonstrates no effective ability to mount a defense.  Are these the attributes of a Cadillac? More like a Ford Taurus with a cracked block, no breaks and a dead battery. See how anybody can use analogies?

Even A.G. Holder can contribute to the cause, given his proclaimed concern for the extant state of crisis, by ordering his underlings not to charge every conceivable crime given the allegations as presented by their vast army of law enforcers, without regard to proportionality, propriety, purpose. The feds do because they can, and they can because Congress has exempted them from the speed limit that applies to the rest of us by creating new crimes on top of existing crimes, raising the penalties to life plus cancer whenever an election is coming in the next two years and a story of a dead victim hits the papers.  But I digress.

Straining to understand why someone as smart as Elena Kagan would use such an ill-conceived analogy, one so obviously destined to criticism while being absurdly inadequate to make a valid point of the failure to provide even adequate representation to so many poor defendants, it finally dawned on me.  This wasn’t about poor defendants at all.

This was Justice Kagan’s homage to the American automobile industry, too big to fail and therefore worthy of billions of dollars that might, in some alternate universe, have gone to providing American citizens with competent representation. The only remaining question was whether the Supremes were adequately compensated for the product placement.

The United States of America has funds when it needs to drop bunker buster bombs on a desert despot who isn’t our pal any longer, and private enterprise that has run its products into the ground such that no one will buy them.  This nation is happy to leave the last breath of young Americans on foreign soil while sucking the last breath from other young Americans in solitary confinement for crimes they didn’t commit.  If this nation wanted to, they could provide every person hauled before a court with a lawyer, one with the time and resources to do a proper job, a Ford Taurus job.

But the United States of America is more concerned about the viability of the Ford Taurus then poor criminal defendants, and that, I submit, is how they got Elena Kagan to be the new spokesjurist.  Don’t be surprised to see a guy chiseling a new slogan in the lintel over the courthouse doors, Drive American.

If it happens every time, then it’s a “problem.” But if it’s the “exception rather than the rule,” then no problem.



From the Portland Press Herald, the Maine legislature’s criminal justice committee is reviewing the use of a prison restraint and the pepper spraying of a bipolar inmate to “to ensure it is an aberration and not an ongoing practice.”  What are the chances that the anyone will give them the real answer, “we don’t use it all the time; just when they deserve it”?

The inmate, Paul Schlosser, refused to go to the medical unit for a self-inflicted arm wound, suffers from bipolar disorder, a mental illness. What a surprise. So the inmate, spits at the guards, as mentally ill people sometimes do.  And the staff is only there to help, in their own friendly way, because corrections is a great place for dealing with people with mental illness due to their sensitivity to their needs. So what do they do?

But when one of the officers pins back Schlosser’s head, as his arms are being put into the chair’s restraints, Schlosser starts to struggle. When he spits at one of the officers, Welch sprays him with pepper spray, also called OC spray.

Schlosser becomes compliant and complains about not being able to breathe. One officer puts a spit mask on him, trapping the pepper spray on Schlosser’s face.

Welch tells him he must cooperate to avoid similar treatment. Schlosser is in distress for 24 minutes before he is allowed to wash his face.

An investigator’s report on the incident, obtained by the Maine Sunday Telegram, said Welch used a pepper spray canister that was intended for multiple subjects, 18 to 20 feet away.

Corrections Commissioner Joseph Ponte said last week the incident started out with the prison staff correctly trying to get Schlosser the treatment he needed despite his resistance.

Ponte said Welch’s behavior as the incident went on was troubling, but he determined, based on Welch’s unblemished record, that a suspension was appropriate and that Welch would not be fired.

Gerzofsky said the committee’s role is to make sure that incidents like the one involving Welch and Schlosser are the exception and not commonplace.

Rep. Mark Dion, D-Portland, House chairman of the committee and former sheriff of Cumberland County, which has the state’s largest county jail, said use of force to control or manage inmate behavior is part of a corrections officer’s duties.

The Judiciary Committee plans to hold a hearing Tuesday on a bill that seeks to prevent prisoners from filing protection-from-harassment complaints against corrections personnel.

“This process safeguards against harassment and retaliation by corrections personnel,” the statement said. “It should be obvious that this protection needs to remain in place even if used only a few times a year.”

At Above The Law, my fellow curmudgeon Mark Herrmann gives us a gift that us groundlings in criminal defense would otherwise never receive, the wisdom of star prosecutor Patrick Fitzgerald, who has left the government payroll to serve the clients of Skadden Arps.

We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.

First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.

So nuts doesn’t equal wrong? True, but not exactly new.  Maybe the white collar “specialists” at Biglaw never crossed a junkie snitch, but for the rest of us, this is pretty 101 stuff.

Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct.

Ah, now we’re getting a bit trickier. So the secret is to presume guilt before the government does (or just pretend, for the sake of pleasing the fine men and women in federal buildings) and throw a few people under the bus to satisfy their bloodlust?  Perhaps we could give this trick a cool name, like “when baby prosecutors say jump, corporate titans ask “how high”?

Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light.

The last thing a multinational corporation wants is to have a prosecutor rely on what the FBI says, so Fitzgerald’s solution is to confess to snatching the Lindbergh baby up front?

Finally, Fitzgerald said that many defense lawyers overplay the possibility that a conviction would cause the company to be debarred from doing government work, which would force the company into bankruptcy and leave thousands of unemployed workers pounding the pavement. Fitzgerald said that prosecutors do care about inadvertently crippling big corporate employers, but many debarment regulations are permissive.

One thing every corporate exec should know is that they can count on the kindness of the government to handle debarment from government contracts or bankruptcy. Prosecutors are sensitive people, and they would never be unduly harsh. They’re from the government, so you can trust them.

These words of wisdom probably cost Aon some big bucks, huge bucks maybe. After all, star prosecutors turned defense lawyer former prosecutor don’t come cheap.  This is a rare opportunity to obtain such insight, only offered to such high-fliers as Aon and the clients of a firm like Skadden.

So let’s review:  If your corporation and its executives become the target of a government investigation or prosecution, Patrick Fitzgerald tells you to take these steps:

Confess
Capitulate
Cop out
Cave in and trust the largesse of the government to provide your salvation
Comply

That’s about $10,000,000 worth of legal advice, courtesy of Fitzgerald.

But you didn’t commit a crime?  But the government prosecutors, none of whom have ever run a company, functioned in a corporate hierarchical structure, been responsible for the actual creation of anything, dealt with foreign cultures?

So what? You aren’t paying attention. The government can’t be wrong. The government can’t lose. It’s the government! Aren’t you listening?

Sadly, most boards of directors do listen, and embrace what Fitzgerald has to say. They don’t want trouble, and the easiest way out of it is to put as many millions (and maybe billions) of dollars on the table as needed to make their government accusers happy.  They will feel badly about having to take loyal, trusted, hard-working corporate executives and toss them mercilessly under the bus as a sacrifice to the prosecution gods, but your life is the price of capitulation, proving to the mighty prosecutors that you are cleansing your corporation of the disease.  So sorry about your family, your future, but they must save the corporate body by excising as many limbs as the government demands.

There is no room for concerns like innocence or that government prosecutors lack any grasp of the conduct in question.  Just be good, little corporate citizens and do as the government demands, no questions asked and no challenge offered.  Comply.

Patrick Fitzgerald is available for future speaking engagements, but you better have a whole lot of money to pay for his critical advice.  Then again, isn’t it worth it? After all, he’s a star.

Update:  I have learned that Patrick Fitzgerald’s talk to Aon was not a stop along the paid speaker circuit, but in fact given without charge.  This does not mean that he is available for federal defender offices and children’s birthday parties, but my assumption that this was a paid gig was wrong and it’s incumbant upon me to correct my error.