It’s enormously frustrating for a guy whose life has been dedicated to fighting for things to have no one to fight with. My family suffers and there is no argument to be had. It’s utter impotence, and it’s brutal.

You can’t argue with a storm. You can’t argue with a dark light. You can’t argue wth guys on power trucks about why they drive down the road past your home to work on someone else’s road. And you can’t argue with people whose power has returned and are trying to get their own lives back to relative normal. But that means you stand there, silently, incapable of changing anything and feeling helpless. This is a foreign feeling.

The crank radio reports that many have gotten their power back, using numbers that reflect “customers.” This is a bit of sleight of hand, as “customer” refers to the name on the bill.  The rest of the people living there don’t exist. So if they say there are still 1.7 million customers without power ten days after the storm, multiply that number by the average household, maybe 2.4, and that reflects the number of cold people. Multiply it by two to get the number of cold hands. The temperature this mornng was in the upper 30s.

The radio offers either nasty and absurdly ridiculous poltical commercials or commercials of insurance companies and service providings who can help those who have suffered damage. They tell us to call their toll free number, or go online. Except we have no electricity, telephone or internet. But they care about us very deeply.

Press conferences by public officials fill the dead time between commercials. Each begins with 20 minutes of thanking each of other for their great work, and their apprecation of people whose job it is to do whatever they are doing. So they are getting paid and getting appreciation. It must be great to be a public official in a crisis.

Donations to American Red Cross are, as with past disasters, plentiful. The problem is that the American Red Cross takes in the money and doesn’t use it for the purpose given. For all those ten dollar text donations, maybe a dollar or two is used for the crisis, with a few dollars going toward administrative fees, salary increases for their full time staff, new office furniture. The rest disappears. This happened after 9/11, Haiti, and every other major disaster. No one ever wonders where the money went after the noise dies down, but it never seems to find its way to its intended recipients.

On Imus this morning, he talked about how he went to Staten Island, and the Red Cross was nowhere to be found.  And yet, donations pour in.  Regardless, there will be nothing, whether Red Cross, FEMA or state aid, available for those whose suffering won’t make a photo op. There never is.  At least they may offer a cot and peanut butter and jelly sandwich to the homeless, like prison. For every $10,000 contributed to the Red Cross, another sandwich is offered. Kinda makes you feel all warm and good about yourelf, right?

The endless flow of guest-post requests, LinkedIn requests, Nigerian scams and legal marketing solicitations never seems to cease. Apparently, there is no loss of power in Bangalore.  The readers who send me 37 links for possible posts daily, especiallng the ones about these horrific conspiracies where our government plans to feed us to aliens from Mars, continue unabated. They too never seem to lose power, or the hope that  I will embrace their conspiracies in the few moments of internet access alotted to me.

No matter how well one prepares for problems, there are unanticipated needs that remain unmet. Clean clothing, for example.  The washing machine doesn’t work without power, no matter how hard you stare at it.  Some folks probably have enough clothing to last a few weeks without washing. I do not. Crisp, starched collars are a distant memory now.

And towels don’t dry in the cold. They stay damp, and get even colder. Cold, damp towels are remarkably unpleasant to use.  Take my word on this.  After a cold shower, or even a warm sponge bath, a dry towel would feel good.

We now see power company trucks fairly regularly, but they just keep driving past and out of view. They must be helping someone more important. 

In my spare moments, I try to keep abreast of the blawgosphere. There is no shortage of stories of interest and importance, and I’m glad others out there are keeping the information and commentary flowing, even if I can’t or won’t.  Maslow’s Hierarchy has kicked in on my end, so staying warm takes precedence over the latest puppycide. And somebody says there is a presidential election coming soon. 

Don’t give to the Red Cross. Be charitable, if that’s your way, but they don’t need new office furniture, and Haiti remains a shambles despite the billions Red Cross took in. Because they just keep the money.

It’s been a long week.  After Sandy disappeared, having done its damage, there was resignation. There is no arguing with a storm or its aftermath. It just is. And so, the first reaction is to try to make the best of it, or at least not make it any worse.

As no one was harmed and no serious damage was done to any structure, SJ World Headquarters fared pretty well. Others certainly suffered far worse.  A walk around revealed 11 trees down, only one of which landed on anything that mattered. 

One tree fell on the utility wires in the woods from the street to the house, and since I had plenty of time and a hand saw, it seemed wise to disregard Dr. SJ’s admonition to stay away from the wires and just cut the tree down.  It took quite a while to cut a tree with a small handsaw, but it can be done.  And it was.

Life without utilities is odd.  There is a lot of dead time. After cutting down the tree, we cleaned the inside of the house within an inch of its life. Vacuuming wasn’t possible, but anything that required hand-rubbing could be done. And it was.

And then there was nothing. Warm water in the tank lasted about a day, and then was gone. The weather outside was cold, and eventually the house was too. Except the KitchenAid refrigerator. We avoided going in for a couple of days, but inevitably had to get to food.  To the extent it held the cold, that was the end of it.  We tried to get in and out quickly, but cold rushing out is faster than we were.

After four days, listening to a handcrank radio purchased because of the frequent day-long loss of electricity, the pioneer spirit turned angry. Going to sleep at 8 p.m.was wearing thin, but there wasn’t anything else to do.  A library about 15 minutes away was open, and had electricity and wifi, but its bandwidth was so badly overwhelmed by people trying to get online as to give a user a few minutes at best. I went there from day three to five, but spend hours trying to get a page loaded. 

Mostly, my time online was used to try to read emails, each of which would take a few minutes to load. It gave me a new appreciation of guest-post requests from spammers, LinkedIn requests from people I don’t know, Nigerian scams, legal marketing solicitations, and friends who asked if I was alive. Then there were the questions from young lawyers about mundane choices they faced, knowing I had no power but still in need of free advice on trivial matters of utterly no consequence.

On Friday, we decided to get out of town. We planned to go to Massachusetts on Saturday anyway, but decided to jump in the car and find a hotel somewhere north.  There was no gas to be had in the area. Food staples, like milk, were gone. The house was very cold and I had enough of the joys of cold showers.

No doubt there was relief being made available to those who lost their homes, In my area, there was nothing.  We saw the occasional power company truck, but it didn’t stop as it drove to some other place in need.  The neighbors who had generators found out that they don’t run forever without gas, and that residential grade generators weren’t meant to run for days on end. They either ran out of fuel or just died.

So we drove north.  Eventually, we found a motel with a room, as many along the way were booked up with out of state electric workers and national guard being sent to New York to help.  It wasn’t nice, but it had hot water and internet. It worked. This is the third day of having real internet access, but up until now, I haven’t felt much like writing.

Yesterday, we went to our son’s first NCAA fencing competition, the Big One at Smith College, where all the schools in the Northeast Fencing Conference competed n regular tournament format.  Out of a field of 89 fencing epees, he came in tied for third.  In his quarterfinal bout, he was down 10-14 (bouts go to 15), and he pulled it back, winning 15-14. The knot in my stomach didn’t go away for an hour.

And so, it was a pretty good week.  We’re all safe, even if miserable. My son did well.  Life goes on.  We’re heading back home today, even though there is still no power.  There is no reliable information as to when power will return, and it’s painful to listen to everyone praising themselves knowing we’re returning to a dark, cold house. 

There will be substantial costs associated with the storm, but as with 9/11 and Hurricane Irene, all the promises, along with the donations, disappear, never to be seen near my neighborhood.  As always, we will be on our own, and will try to find a way not to make the next day, maybe week, without power any more miserable than it has to be.

The weather report is that it’s going to get colder and there’s a nor’easter comng to knock down whatever electric lines are still up. I don’t expect to feel like writing for a while.

Passing through Laramie, wyoming, Supreme Court associate justice Antonin Scalia gave a talk at the local law school, where he answered a few student generated questions.  Nino answered one question, what was the best piece of advice he could give law students:

In response to Wallace’s question about the single best piece of advice Scalia would give to law students, he advised them not to waste their time taking “frill courses.”

“Professors like certain subjects that they’re writing a book on, so they teach a course in that subject,” he said, adding that students who take the course get to do the research for the book.

“Because there are so many professors teaching their hobbies, the rudimentary courses are not taught with the frequency necessary for everybody to take them,” Scalia said.

“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school,” Scalia said. “You should not waste that opportunity. Take the bread and butter courses. Do not take, `law and women,’ do not take `law and poverty,’ do not take `law and anything,'” he said.

Had he used “Nietzsche and the Law” as an example, it probably wouldn’t have rankled anyone too badly, but Nino pushed a button that set off a firestorm.  Law and women?  Law and poverty? Both women and the poor took umbrage, neither being a particular fan base for Justice Scalia.  And here he was, saying they weren’t worthy. Oh boy.

But the group he slapped hardest was law professors, when he said that “there are so many professors teaching their hobbies.” George Washington Lawprof  Jonathan Turley did not take kindly to the slap.

That is a disturbing account to give students and serves only to “dumb-down” legal studies. My students will be better lawyers but not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s in their ability to move seamlessly from the theoretical to the doctrinal in class.

I am disappointed in the recent controversial comments by Scalia because he reflects a deep understanding of legal theory and history in his writings. His opinions are greatly benefited by that deeper knowledge. Student gain such theoretical foundation by taking these seminars, which often inspire or challenge the view of law students. Lawyers are not accountants who merely tally columns of precedent. They are part of an organic and ever-changing field. The current laws are changed by the powerful legal theories and policies that constantly move beneath the legal superstructure.

Turley’s rhetorical flourishes aside, his disappointment doesn’t address the problem.  Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen), There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.  If by theory he means the latest law review article on the subject, advocating for a separation of the law of potted plants from those planted in the ground, then it’s hard to ignore Nino’s “hobbies” argument. There are a ton of theories promoted by scholars, most of which pass quietly through the night, never to be heard of again, and for which we are generally grateful.

But then, there is the problem of cost/benefit analysis.  Law students pay a hefty price to learn the law of potted plants. Some do so in the hope of becoming a potted plant lawyer one day. Others just need to flesh out their schedule because they’re still required to do a third year of law school regardless of its merit.

I don’t disagree with Jonathan’s belief that teaching theory as well as doctrine matters. It’s the same problem as “remembering the rubric while forgetting the rationale” that I often raise when arguing that an application of “black letter” law makes no sense, as it becomes increasingly distant from its birth.  The only way to change the law, to make it serve society better as things develop and change, is to appreciate the theory behind it that justified its inception, and thus be capable of arguing why that justification no longer serves our interest.

But it’s not all clear that Nino thinks any differently, even though he tweaked some of our more passionate people in his choice of examples.  Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who so desperately want to push their personal hobbies, examples of law and women abound in discussions of property law and contracts.  There are no shortage of pet peeve opportunities.

Rather, what doctrinal and practical instruction is offered by the “Law and …” courses? Recently, I’ve seen lawyers claim to do hail damage law and even flash mob law.  These don’t’ exist. Stringing words together doesn’t make them real, and they are just minor variations on other extant practice areas.  They’re cute gimmicks, but nothing more.

It’s not at all clear that there is any real difference between Nino and Jonathan’s perspectives, aside from the fact that Nino would shut down a few teaching opportunities, which would mean smaller faculty parties.  Nino didn’t say that law schools shouldn’t touch upon theory, but that they should not have “law and” courses that embody hobbies that don’t reflect actual areas of law. 

Rather, I think Nino just pushed Jonathan’s button.  And a little button pushing from time to time isn’t a bad thing.

John Allen, 64, a retired engineer in California, writes a blog called The Skeptical Juror. With the help of Barbara Lunsford, an accountant in Corpus Christi, and Ward Larkin, an activist from Houston, he has spent nine months and more than 100,000 words delving into the forensic and legal details of Mr. Hughes’s case.

The official facts of the crime, on their face, pointed directly to Mr. Hughes. On the night of Sept. 26, 1988, Shandra Charles, 15, and her cousin Marcell Taylor, 3, were fatally stabbed in a Houston field. A police sergeant reported that before she died, Ms. Charles identified the name “Preston” and said, “He tried to rape me.”

Detectives located Mr. Hughes in a nearby apartment complex. Investigators found evidence of blood on his clothing and a knife in his apartment, as well as Ms. Charles’s eyeglasses on his couch. Mr. Hughes, who said the glasses were planted, confessed to the murder during the investigation but then denied involvement during the trial. No biological evidence tied him directly to the crime.

Hughes has a lawyer, Patrick McCann. He wants to get rid of McCann and get a new lawyer because McCann won’t raise Hughes’ claim of actual innocence.  McCann demurs.

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. But Texas and federal law set a high burden of proof for new claims of “actual innocence” so late in the judicial process, a bar that Mr. McCann said was “almost impossible” to meet.

The assumption tends to be that the lawyer must be some incompetent buffoon, mailing it in for the skimpy state paycheck, which he will spend on booze, after which he’ll sleep it off in court. But what if McCann is a top notch lawyer, doing everything he can within the bounds of the law to save his client’s life?

The issue of advocates’ doubting the work of lawyers is common in death penalty cases, especially as an execution date nears.

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

Murray Newman, a Houston defense lawyer, said he believed Mr. McCann was doing his best and cared about Mr. Hughes. “He works so hard on these cases. It’s like losing a family member,” Mr. Newman said.

Hughes isn’t as fond of his lawyer.

From death row, Mr. Hughes sees it differently, as he plays basketball during his hour of recreation every day, eats food he calls “pitiful” and learns about court decisions from a small, black radio.

“We don’t like each other,” he said of Mr. McCann. “I don’t feel somebody who doesn’t like me is going to do anything for me.”

A loss of confidence often follows a lawyer’s inability to achieve his client’s goal, followed by fighting, arguing and accusations, which gives rise to personal animosity.  For defendants and advocates, this seems critically important.  For lawyers, not so much.

In the simplistic good/evil dichotomy that most outsiders see the criminal justice system, defendants and advocates tend to wish away the problems and see only their point of view.  Passionate lawyers tend to do something similar, conflating an excess of zeal with effectiveness.  We see a lot of this in the blawgosphere and on non-lawyer blogs and websites, where the police and prosecutors are always nefarious liars, judges always hateful morons and defense lawyers incompetent, greedy scum.  It explains everything.

But for a lawyer like McCann, his duty doesn’t require him to love his client.  It requires him to represent him, and to do everything within his power, and within the bounds of the law, to save him from death. 

Lawyers work under constraints that advocates may not, such as the rules of evidence and the legal tests for setting forth and prevailing on a claim.  Advocates can argue, and often do, that these rules that fly in the face of what they believe to be justice are stupid and damaging. They are sometimes right, even though they lack the background in how these rules and tests came to be, or how they can be used as shield as well as sword.  But yes, when they stand in the way of perceived justice, they always look stupid.

Still, they are the boundaries within which the lawyer works if he hopes to achieve success.  As many beefs as we may have with the functioning of the system, it remains the system. Ignoring it helps no one. Sometimes, we can fight it and hope to have that one in a million case that forces a major shift in the system. Other times, we can scream as loud as we can, or as long as we can, and will accomplish nothing.

Patrick McCann is doing what lawyers do, fighting the pending execution of Preston Hughes. Advocates don’t think he’s doing enough. Hughes wants a new lawyer who will fight the fight he wants to make.  And McCann, getting little love from anyone, just does what lawyers do.

If McCann fails to stop Hughes’ execution, someone will blame him for being complicit in the death of his client because of his refusal to argue and win what advocates believe to be true, that Hughes is innocent.  And if he did argue it, despite his having no chance of success and doing everything in his power to challenge the execution on grounds that have at least the potential to succeed, advocates would speak better of McCann as they stand around Hughes’ grave. 

This is not to condemn advocates, or defendants, for feeling as they do. This division doesn’t always exist, and they can’t be faulted for believing as they do.  But McCann is a lawyer, and he has a duty that isn’t controlled by pandering to those who would have him argue what makes them feel good.  And he has persisted in fighting for Hughes, as his lawyer, despite the fact that neither his clients nor those advocates supporting his client have any kind words for his efforts.

When I sat on a planning board, I listened carefully to engineers speak of 20 year, 50 year and 100 year storms, the worst case scenarios that ought to guide our decisions as to the adequacy of sites and structures to accommodate impending disaster.  Obviously, 20 year storms happened with greater regularity than 100 year storms, so the demands of a 20 year storm had to be met.

But they say Frankenstorm is a 100 year event, the big one.  Sitting in Simple Justice World Headquarters, I’m wondering what I should do about it. There has been nothing on the television news except storm reporting, even though there is no storm here yet to report about. It’s been days, pre-empting the existence of any other news. Other than the Giants win over Dallas and reruns of Real Housewives of Somewhere, every station is obsessed with reporters getting their hair blown.  The engineers never mentioned the role of the media in 100 year storms, and whether there was anything to be done about it.

For the moment, there is a breeze outside. It’s expected to pick up later in the day, eventually reaching minor hurricane proportions, which are more than the mid-Atlantic coast states were designed to withstand.  No doubt there will be damage, likely extensive in some areas.  They have been warned to evacuate in low-lying areas. Others have been told to prepare.

How to prepare isn’t necessarily clear. Remove objects likely to fly away. Have batteries for when the electric is lost, as the power company robo-called the other day to warn they anticipated 7-10 days without power. Stock up on drinking water for when the ground water is contaminated and the pumps that send clean water to homes fail. 

Frankly, it all sounds like government should have been prepared and isn’t.  Every time something worse than a 1 year storm hits, they can’t seem to muster whatever it takes to make it through unscathed.  Some will say it’s because they don’t have the money to fix poor infrastructure decisions that were penny-wise and pound-foolish made years ago, and which we still endure.

Others say baloney, we simply piss away infrastructure money on silly toys, gimmicks and social choices. Most people never took econ 101, and aren’t familiar with macroeconomics and the allocation of scarce resources. Nobody ever talks about guns and butter anymore.

As for SJ World HQ, I anticipate the imminent loss of electricity. The north shore of Long Island loses power whenever anyone sneezes too hard, so it’s pretty much a foregone conclusion.  Since New York City is shut down, it’s not terribly consequential. We’ve been here before, and survived. We will again. It’s boring and annoying, but that’s hardly moves the needle on human suffering.

Until then, the plan of action is to just keep doing what we always do. We’re as prepared as we can be, and as unprepared as ever.  For now, the only thing we can do is listen to the wind whistle through the trees and await the storm.

I hope everyone remains safe and free of damage. In the meantime, there isn’t much else to do but continue wait. So forgive me as I shift back to normal mode and think about things other than Frankenstorm, as it will happen whether I spend the day worrying about it or not. 

Following on New York University Law School’s  announcement that one of the options for the third year of law school will be to specialize, Colorado lawprof Victor Fleischer picks up the ball and runs. At the New York Times Dealbook, where they just can’t get enough of the academic perspective, he writes:

Law firms are struggling with the new normal of a segmented industry. The new economics of the profession are marked by increased lateral mobility among partners, increasing numbers of nonequity partners, increased client scrutiny of fees and a decrease in the routine legal work that used to support the pyramid model. As a result, it is harder for law firms to devote nonbillable time to training entry-level associates. Law graduates are expected to arrive knowing more than just how to “think like a lawyer.” The tricky part for law schools is trying to figure out what, exactly, they need to know.

Having a rather typical academic background, a couple of clerkships and a brief stint in Biglaw, it’s not entirely clear how Fleischer came to have his finger on the pulse of the legal market, but his vision of law firms appears limited to the handful of big ones.  This matters when considering where he goes.

In my view, law schools should play matchmaker, guiding students toward specialties that are likely to endure. Big firm attorneys in some practice areas will continue to have a comparative advantage over low-cost attorneys, in-house lawyers and other professionals.

But since most lawyers aren’t worthy, they will fall by the wayside.

Few law students go into academia or become public defenders. But the more common narrative is for law students to arrive at law school with a vague notion of doing international or environmental law, then meander aimlessly around the curriculum. Eventually, realizing that gainful employment is probably a good idea, they find themselves in a job interview wondering what in the world a bond covenant is. At that point, offering an elective course in accounting and finance is too little, too late.

While Fleischer, despite his implicit elitist stance, advocates for more practical training for lawyers, though why learning accounting and finance in the last year is too little, too late, is never explained. Perhaps we shouldn’t question the professor. But he shifts effortlessly into the LL.M. model, and wonders:

Could the same approach work in other areas of law that demand specialized legal expertise, like securities law, banking law or patent law? The critical question is whether there is sufficient market demand to supply an adequate number of jobs with six-figure salaries.

Again, it’s unclear whether he’s advocating for specialization within the existing law school structure, or asking law students to double down with an LL.M. if they can’t find work as a generalist.  And finally, his implicit elitism becomes flagrant.

None of this solves the broader problem at nonelite schools: the supply of law graduates simply exceeds market demand. The median salary of law school graduates at many schools is about $50,000, while average debt load is now over $100,000. As specialization takes hold, the next logical step is to lobby the American Bar Association to make the J.D. a two-year degree, with an optional third year of specialization for schools where that makes sense.

Sadly, his conclusion isn’t without some merit.  The vast majority of law students graduating will never see Biglaw salaries.  If it makes you feel any better, even those who nailed Biglaw jobs over the past seven years will never be made equity partners, and even those who do may find their firms collapsing under their own weight, leaving them fighting clawbacks.  A bit of schadenfreude, but it won’t pay your bills.

Clients want to know that their lawyers are capable of handling their work.  Lawyers may say they are even if they can’t find their way to the courthouse without a map, but to admit otherwise is to starve.  Recognized specialization may work to help, both by preparing lawyers to practice and providing a means for clients to distinguish between the lawyer who has familiarity, if not experience, with a particular practice area and those who are blowing smoke.

But Fleischer omits a critical component of the transition from generalist to specialist, particularly if the point is to make law students practice-ready and client-safe.  Scholars can’t do it.  With rare exceptions, scholars are no more capable of finding the courthouse than the M&A associate. Scholars can’t teach how arraignments happen, or the risks of being  reasonably unready in a personal injury trial assignment part.  These are the realities that crush a lawyer’s soul, and a client’s dreams.

The legal academy is offering their remedy for the ailment they created by insularity and hubris,  And yet they do so without acknowledging that teaching the nuts and bolts of lawyering requires someone who knows the nuts and bolts of lawyering.  How many lawprofs can teach law students the finance of running a solo shop, given that they’ve never been near a solo shop lest it soil their suit?

I don’t fault Fleischer for not recognizing that he’s proffered only part of his own answer. He wouldn’t realize it, because his experience is so limited and his vision of the rest of the profession so distant.  But this is why the future of law can’t be left to academics to decide on their own, and why practicing lawyers, the ones in the trenches where these law students will likely end up when they get no Biglaw callbacks and graduation date is looming, need to become involved.

I’ll sit by the phone, just in case some nonelite law school calls to ask if I can teach a third year specialized course in the practice of law.  I don’t expect it to ring. 

Eugene Volokh argues that a well-written legal argument doesn’t merely have a logical persuasive effect, but creates what he calls an authoritative bubble.

Rightly or wrongly, something that seems to be a thoughtful written argument by a respectable professional tends to have more than just a logical persuasive effect — it also has a psychological effect. If the argument is well-crafted, the reader is inclined to credit not just the factually verifiable claims in the argument (whether about fact or about precedent), but the analogies and the speculation in that argument, too.

The reader, even a judge (who is therefore of higher status than the writer), is likely to subconsciously treat the argument as having some authority. This usually won’t let the author get away with total nonsense, or mischaracterization of the facts and the law (once that’s exposed). But when the argument involves judgment calls — is the case really that similar to that precedent? what are the practical effects of a ruling likely to be? — the reader will be inclined to be moved by the argument even beyond what the purely logical force of the argument justifies.

The more general argument is that poorly written briefs impair a lawyer’s “credibility,” which Eugene defines as dishonesty or factual accuracy.  My definition would be somewhat different, more along the lines of general believability and trustworthiness. I trust that a person knows what he talks about when he can write well about it.

Eugene’s bubble runs more along these lines, that the solid writer creates a psychological impression of authoritativeness on the subject of his writing, and is thus sufficiently trusted as an authority that he can both go further with his argument and his thoughts are accepted with lesser scrutiny. 

An unnamed, relative rookie judge responded to Eugene’s post with his views :

As a criminal law trial attorney I thought it advantageous to write in a way that made it easy for a judge to rule in my favor; succinct, good authority, concise arguments. I tried to make every submission under 7 pages. I can count on one hand in 28+ years as a trial attorney reading an opponent’s brief that impressed me or, as you put it, carried a sense of authority.

I had never thought about it in terms of, “authority,” but I think it’s an apt description. The citation to a statute or case was usually on track, but everything else seemed almost always to be the written counterpart to a Jackson Pollok painting. Terrible sentence structure, typos, misuse of punctuation, facts not incorporated effectively, hyperbole, the list goes on. Good, persuasive written arguments do carry an authoritativeness that, for me, equates to persuasiveness. And it often is an unconscious appreciation, you’re persuaded without understanding why.

As a judge, admittedly with only 20 months experience, I have yet to read anything that has impressed me. Some of it is just plain, well, garbage. For years judges in private conversations would extol the superiority of civil law attorneys to me but I have yet to see much in the way of praiseworthy writing there either.

Naturally, a reader smacked back from the safety of an anonymous internet comment,

Holy pretentiousness Batman! Do you have an ego or what.

This reaction, aside from ignoring the nature of what it means to sit as a judge, reflects perhaps the most dangerous threat to good writing, maybe even good lawyering. Yes, the judge’s thoughts, that he was a wonderful writer and every other lawyer in his 28 years of practice or has come before him in the past 20 months sucks, is outrageously arrogant. But he is now the judge. He now decides whether you win or lose. By definition, the effectiveness of every lawyer who comes before him is determined by his reaction to their authoritativeness, or lack thereof.

It takes a very long to time to fully appreciate this aspect of jurisprudence.  I can still recall Myres McDougal tell this to the class, and warning us not to get too wrapped up in the details as we wouldn’t come to appreciate it for many years. Just listen, he said. Some day, you will understand.  He was right, but it took a long time.

Self-assessment of the quality of our legal work is fraught with danger. The distinction between efficiency and effectiveness has been so horribly blurred that we have great difficulty realizing that our satisfaction with the sufficiency of our effort is utterly irrelevant. We pat ourselves on the back for a job well done and feel self-satisfied. Other than the fact we lost, we were great.  After all, didn’t our mother tell us to do our best, and that’s all anyone could ask of us? 

Mother was wrong. If our best is inadequate, we have two choices. Get better or get out. And the person who determines whether our best is inadequate is the judge, no matter how crazy, arrogant or wrong he may be.

Almost all lawyers in the first five to ten years of practice reject this notion without even realizing it. They glow with the confidence of youth, Certain that they not only know what they’re doing, but that they’re doing it well.  They know this because they’ve decided it about themselves, and to them, that’s the only bar they need to meet.

Somewhere about the tenth year of practice, most lawyers come to the realization that they aren’t nearly as brilliant as they thought. They don’t’ necessarily reach this epiphany willingly, but by reaching a point in life where one surveys one’s accomplishments and failures, and those with sufficient metacognitive abilities realize what they could have done better if they had only known.

Over the next 20 years (and I limit it to 20 as that’s as far as my experience stretches), you struggle to achieve the bubble of authoritativeness.  You will never be as confident as you were in those first ten years because you know too much. 

This is one of the reasons so many lawyers’ aspirations change from Clarence Darrow to survival, realizing that they weren’t before, and will never be, a great lawyer. Instead, they turn to making a living and, for the better of the bunch, not screwing up too badly.  They give up trying to be better.  It won’t happen.

As a group, lawyers have never lacked for unwarranted self-esteem. But if it’s worse now, since everybody’s a winner, then the earlier one reaches this epiphany, the better off everyone will be, whether as an effective lawyer or coming to the realization that you won’t be Clarence Darrow either.

As is my way, I deleted the first two emails I got from somebody who called herself Jennie Reedy.  Her gmail address was a typical giveaway, as opposed to someone who at least had an email that led back to the source.  Like many blawgers, I get about 20 of these “requests” a day, and just chuckle at the stupidity and ignore them.

Protip: The “guest post” scam is a common method of clown marketers to enable ignorant lawyers to manufacture an overnight presence on the internet. It doesn’t work, both because no legitimate blawger will post this crap (and it is invariably total, utter crap) and because every other incompetent buffoon marketer is telling their lawyer clients the same thing. 

But this Jennie Reedy was a persistent one. After ignoring her first email, a second arrived. Then a third. Now she caught my attention, not because I took a sudden interest in her “guest post” offer, but because she became annoying.  What was unusual about the first email was that it included an attachment of the proposed “guest post,” whereas most make the offer but don’t send anything.

So I took a look at what she (if, of course, she is even a “she,” since on the internet, nobody knows you’re a dog) sent me.  It was awful.  The post was entitled “Drunk Driving: 5 Common Misconceptions.” and it was just dumber than dirt.  But at the bottom of the post was the kicker.

Jennie is a long time San Diego criminal attorney . Away from the office she unwinds by baking pies, doing crossword puzzles and spending time with her three beloved teenage daughters.

After you’re done laughing at the things Jennie does to unwind, because as marketers explain, people want to know more about your personal life so they will like you better, note that Jennie says she’s a long time lawyer linking back to the website of Bradley Corbett , a 2007 graduate of Thomas Jefferson Law School who opened his own practice in 2011. He’s also an Eagle Scout.

I checked  the link at his website where I could “Meet [his]Team,” and found no one there by the name of Jennie Reedy.  I wondered if Bradley knew that someone was masquerading as a “long time” attorney related to his short time law firm, so I sent him an email.  Bradley responded that he “had no idea who that is.” Shocking. I then sent an email asking whether he had someone doing marketing for him, but received no reply.

So what are the chances that someone is roaming around the blawgosphere offering an incredibly stupid “guest post” linked to a lawyer’s website, claiming to be a lawyer, and you don’t know who she is? 

As my pal, Eric Turkewitz, made clear years ago, outsource your marketing and you outsource your ethics.  Does any lawyer really think it’s a good idea to have a marketer spamming the blawgosphere claiming to be a lawyer for your firm?

I have no idea whether Bradley Corbett is a good lawyer or not. Based on his website and activity at Avvo, he’s certainly not shy about marketing himself, but that doesn’t make him a bad lawyer. What it does, however, is give rise to a deep question about his judgment, that his desire to get business is more important than his reputation or integrity. 

And please note that I’m not picking on a new lawyer for trying to survive, but rather had this forced upon me by the tenacity of Jennie Reedy.  So don’t blame me for doing no more than the guest post spammer asked of me. I looked. I found. That’s how it works.  Had she not pushed the envelope, I would never have bothered with Bradley Corbett. I was almost inclined to post the “guest post” together with its link back to him just because it was so mind-numbingly stupid.

Is that really what you’re trying to accomplish when you manufacture a social media persona?

Robert Halter was a divorced father whose ex-wife had taken his daughters and moved away, leaving him without much contact. They eventually moved back to New York, and Halter was allowed to see his children on weekends. But what he found disturbed him.

[H]is relationship with his older [13-year-old] daughter was fraught with difficulties. He constantly argued with her about what he considered her unacceptable behavior and threatened to send her to a “brat camp” if she continued to disregard his admonitions.

Things didn’t improve,

Their contentious relationship lead [sic] to an incident in July 2006, when defendant sought police assistance to locate her since she had not returned to her mother’s home the night before. After the police picked her up at the home of a 16-year old boy, she and defendant had a heated telephone conversation. When the phone call ended, she informed her mother that her father had sexually abused her. The younger daughter later made a similar revelation, leading to defendant’s arrest.

That’s the backdrop to the Court of Appeals decision in People v. Halter, affirming the defendant’s conviction after a bench trial of first degree sexual abuse, second degree rape, criminal sexual act in the second degree and endangering the welfare of a child.  On appeal, the defendant argued that the court precluded his presenting a defense because of evidentiary rulings based on the rape shield law.

On appeal, defendant claims that he was deprived of a fair trial because several of the trial court’s evidentiary rulings prevented him from adequately establishing his older daughter’s motivation to fabricate the charges. In particular, he asserts that the trial judge erred in precluding (1) cross examination of the older daughter regarding the purportedly sexual nature of her relationship with the 16-year-old boy at whose home she was found; (2) cross-examination about her sexually provocative postings and photos from her MySpace account; and (3) evidence of her tendency to wear what defendant considered to be inappropriate clothing for her age. Defendant claims that this evidence was essential to explaining the increasing discord between himself and his daughter and that its exclusion did not allow him to present a complete explanation of his defense.

The majority of the Court affirmed the evidentiary rulings, noting that the rape shield law existed to prevent the admission of evidence, such as provocative dress or prior sexual contact, which had historically been used to fend off claims of rape, as this evidence “rarely elicits testimony relevant to the issues of the victim’s consent on credibility, but serves only to harass the alleged victim and confuse the jurors” (People v. Scott, 16 NY3d 589, 594 [2011].”

The Rape Shield Laws came about at a time when recognition that rape wasn’t about loose women looking like floozies giving up their right to refuse sex, but about a particular wrongful act, and the right of every woman, regardless of the height of their skirt, to say no.

But like so many rules that assume the mantle of “black letter,” there is a tendency to remember the rubric and forget the rationale. Rape shield laws pertain to consent, not credibility.  And in this case particularly, there was no claim by the defendant that his 13-year-old daughter consented to sex, even if that was legally possible, but that nothing sexual ever happened.  Rather, the child lied to rid herself of a father for whom she felt no love and who threatened her lifestyle.  This put her lifestyle in issue.

In dissent, Judge Eugene Piggot, who is not generally viewed as particularly friendly to the defense, recognized what the majority missed, that the Rape Shield Law was never intended to be “inelastic.”

[T]he statute provides that a trial court may determine, in its discretion, to admit evidence of a victim’s sexual conduct if it is “relevant and admissible in the interests of justice” (CPL § 60.42 [5]). It may do so “after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination”

The facts of the Halter case teed up the nightmare scenario, where a father was accused of molesting his daughter and there was no direct way to prove the negative, that it never happened, even though there was strong reason to believe that he was innocent.  Yet the trial court’s refusal to allow the defendant to use what little he had was dismissed with a cursory “it’s inadmissible.” Move along, defense.

The case against Halter was built solely on the testimony of his daughters, with no forensic evidence behind it. The basic “she said, he said,” scenario, coupled with the prejudice favoring a child and against an adult, favoring a female and against a male. While this doesn’t mean it couldn’t happen, it also doesn’t mean it did.

Also dissenting, Judge Robert Smith laid out the arguments militating against guilt, making a formidable presentation.  Most telling was this description:

The older complainant asserted, in substance, that on three occasions defendant attacked her sexually without warning. On two of the occasions, his alleged conduct in doing so seems to have been almost insanely risky: It took place in a room where several other people were asleep. The record shows that, as defendant well knew, the older complainant was not a meek or submissive child. What made him think she would not cry out, and awaken the others?

If a defendant argued that this could happen in some alternative case, there is little question that it would be viewed as “insanely risky” and rejected as a laughable position.  Yet, when it’s the prosecution’s claim, notwithstanding the burden of beyond a reasonable doubt, this “insanely risky” scenario is magically transformed into accepted fact, because the alternative would be to disbelieve a female child.  This just isn’t done anymore.

The point isn’t that rape shield laws are bad, or that we should return to the good old days where two independent witnesses were required to confirm a rape occurred.  Rather, we have gone so far off the deep end the other way that it’s nearly impossible, no matter how insane the contentions, to defend against the facile accusation of rape or sexual molestation.  While we certainly want to protect children from this, convicting the innocent protects no one. 

There is an excellent chance that the Court of Appeals affirmed the conviction of an innocent man. Statutes enacted to prevent the smearing of women for their dress or unrelated conduct has now crept so far into the law as to preclude a defendant from fighting false charges.  Are aficionados of an absolutist approach to the rape shield law pleased by this? Is any woman, any child, saved by the conviction of an innocent man?

H/T Don Thompson

Public perception aside, one of the most important traits of a judge is what we delightfully refer to as “judicial temperament.”  The ABA Standing Committee on the Federal Judiciacy  defines judicial temperament as

compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.

Nowhere in there does it say well-motivated righteous indignation as reflected by judicial anger.  But then, Vanderbilt lawprof Terry Maroney argues that it is  time for a change.  The law review article begins with very short sentence: Judges get angry.

There is no way to avoid the reality that judges are people, and as such suffer from the same frailties as the rest of us. Bias. Anger. Boredom. The aspiration of including judicial temperament as a criterion for the selection of judges is that they will suffer fewer frailties than most.  We may not be able to pick judges who are devoid of the ignoble traits of humanity, but we can try, right?

Legal culture, however, is of two minds about judicial anger. On the one hand, anger could be called the quintessentially judicial emotion. Humans (including judges) feel anger when we perceive that a rational agent has committed an unwarranted wrongdoing; that experience of anger generates a desire to affix blame and assign punishment, and facilitates actions necessary to carry out that desire. This coupling of judgment and action rather precisely describes one core function of the judge. Indeed, we may expect judges to act as society’s anger surrogates, so as to avoid vigilante action. We often rely on them to assign blame, frequently task them with assigning consequences, and always hope they will be motivated to perform these functions.

On the other hand, anger seems to pose a danger to the neutral, careful decisionmaking we also expect of judges. Anger is powerful, and its effects sometimes regrettable; consider the actions of a Florida judge who, “red faced and yelling,” left the bench to “physically intimidate” an assistant state attorney. Anger is the prototype for the traditional view of emotion—a view strongly reflected in legal theory—as a savage force that unseats rationality, distorts judgment, manifests in impulsive aggression, and imperils social bonds. Indeed, fear of such irrationality led Judge Richard A. Posner to declare that we ought to “beware . . . the angry judge!”

It’s unclear to me whose legal culture Maroney is referring to, but it’s surely not mine.  There is no aspect of “legal culture,” if that’s defined as what those of us engaged in the law desire, that seeks judges to be society’s avenging angels, the embodiment of blind rage.  While we ask judges to “affix blame and assign punishment,” we do so based on applying the law and achieving its legitimate goals.  What we do not do is ask judges to vent our collective spleen against those we despise.

Sure, the public always enjoys judicial rage, provided it meets with their approval.  If the public hates someone, they applaud the judge who hates them too and lets their hatred come across loud and clear. This judge becomes a public darling for expressing what people feel; it’s feel-good law for the benefit of those who enjoy watching those they despise “get what’s coming to them.”

But this flies in the face of what judicial temperament is all about.  And Maroney says that’s not only okay, and can’t be helped, but should be tapped for righteous causes.

Righteous judicial anger rests on accurate premises; is relevant; and reflects worthy beliefs and values.

Where we have traditionally sought to rise above personal anger, Maroney exalts it, provided it comports with “worthy beliefs and values,” which by definition are those that we agree with.

Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused. Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community.

It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency. By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.

Rarely has anyone suggested that the expression of a judge’s personal outrage “demonstrates judicial respect for the defendant.” Having stood beside more than one defendant being sentenced and subjected to judicial outrage, no one ever told me afterward how much he appreciated the judge’s moralistic rant because it reflected respect for his humanity.  In fact, it’s never been well-received in my experience.

There is no disputing Maroney’s premise that judges are people, and as people, suffer from an emotional bias in the performance of their role.  When they take off their robes, they no doubt have feelings just like the rest of us.

But when they put on their robe, they assume the responsibility of their position. They are no longer entitled to let their personal feelings intrude on the authority they have over others.  It’s not that it doesn’t happen, but that the goal is to prevent it from happening.  Maroney argues the opposite, that since it happens, we should embrace anger and encourage it to be used for socially desirable ends, which means the ends that we agree with.

The tyranny of the majority is always a popular thing, as it makes the villagers storming the courthouse with their torches and pitchforks feel validated.  The last thing we need is to relieve judges from their obligation to maintain judicial temperament and play to the angry mob.  Will the mob agree with the judge’s moral outrage and applaud her righteous indignation?  Probably.  This is precisely what we fight against.

H/T Doug Berman