When it’s called pepper sprays, it sounds relatively benign, maybe even tasty if offered for a nice garden salad. But it’s really pretty nasty stuff.

For individuals not previously exposed to OC effects, the general feelings after being sprayed can be best likened to being “set alight”. The initial reaction should the spray be directed at the face, is the completely involuntary closing of the eyes (sometimes described as leading to a disconcerting sensation of the eyelids “bubbling and boiling” as the chemical acts on the skin), an instant sensation of the restriction of the airways and the general feeling of sudden and intense, searing pain about the face, nose, and throat. Coughing almost always follows the initial spray.

For the most part, the effects wear off in about four hours, though it’s unclear whether there are long term effects.

The US Army concluded in a 1993 Aberdeen Proving Ground study that pepper spray could cause “[m]utagenic effects, carcinogenic effects, sensitization, cardiovascular and pulmonary toxicity, neurotoxicity, as well as possible human fatalities. There is a risk in using this product on a large and varied population”. However, the pepper spray was widely approved in the US despite the reservations of the US military scientists after it passed FBI tests in 1991. As of 1999, it was in use by more than 2,000 public safety agencies.

As we are all aware, pepper sprays has become part of the law enforcement less-than-lethal arsenal, its primary virtue being that it doesn’t involve shooting someone.  This, apparently, is why it’s become the tool of choice of police officers charged with maintaining order in high schools.

Via the Las Vegas Sun, a group of about 100 students watched a fight at Chaparral High School. 

Chaparral junior Selena Aguirre, 17, told her father that school police officers used pepper spray to disperse a crowd of about 100 students who witnessed a fight in the school quad. Officers sprayed randomly in the air, affecting bystanders as well as the fighting students, Selena said.

In the melee, Selena — who said she was not involved in the fight — was hit in the face with pepper-spray, Aaron Aguirre said.

The police were not only unapologetic, but quite satisfied with the outcome.

Officers gave a verbal warning and tried to physically separate the fighters before resorting to using pepper spray to stop the fight and scatter the crowd of bystanders, [police spokesman Ken] Young said.

No officers were injured in the fight. It is unknown how many students were affected by the pepper spray, Young said.

No doubt we are all thrilled at the news that no officers were injured, not that the police spokesman’s critical focus was the point of the story or the concern of parents about the pepper spraying of students to “scatter the crowd” of innocent bystanders. 

While the use of pepper spray as a quick fix in high school may be new to Vegas, it’s old hat in Birmingham, Alabama, where the Southern Poverty Law Center is suing the school district on behalf of students for using pepper spray to control “routine misbehavior.”

The lawsuit claims police officers working at the schools as school resource officers _ or SROs _ have used pepper spray for what are really just behavioral problems that don’t pose a threat to the officers. The center has stated in court documents that since 2006, more than 100 school children in Birmingham have been pepper sprayed, although more recently center officials put that number at 200.

SPLC officials have said that Birmingham police don’t have a specific policy, or training, for use of pepper spray against students in schools. It’s the same policy for officers on the streets.

In response to the police and school district’s motion to dismiss the §1983 action, District Court Judge Abdul Kallon wrote:

“In viewing the facts in a light most favorable to Plaintiffs, it appears that, at best, the most severe crime any Plaintiff (student) engaged in was disorderly conduct or resisting arrest. Disorderly conduct is, of course, not a serious offense warranting use of force, including the use of non-deadly force like mace,” Kallon wrote. “Similarly, resisting arrest without force does not rise to a level of dangerousness that justifies the type of force used here.”

The judge wrote that Moss’ “admitted conduct borders on child abuse and is precisely the type of behavior that creates a strong inference of ‘legal malice or wicked motives.'”

While there may well be instances where high school students are engaged in violent and dangerous conduct, whether to each other or the police, this isn’t the nature of conduct at issue here. The problem is that police are using pepper sprays as the weapon of first resort whenever students just aren’t respecting their authoritah. 

True, pepper spray is better than a beating with a club, and certainly a bullet.  Whether it’s better than a Taser is debatable. What it is not is an appropriate means for managing routine student misbehavior. We do not use weapons against our own children when they are just not complying with commands fast enough.

Much as providing police with military weapons gives rise to their routine use in ordinary domestic situations, providing less-than-lethal weapons on a Sam Browne has given rise to their indiscriminate use as well.  Only they are now being used in our high school against our children. And not necessarily against the children who are even arguably involved in misconduct (forget the issue of whether the misconduct warrants the use of force), but even those who are acknowledged bystanders.

Had there been no pepper spray on these school cops’ belts, would harm have befallen anyone by dint of a crowd of 100 students watching a fight once the fight was broken up?  But it’s there. They have it. It’s “less-than-lethal, and, by golly, it’s so darn convenient to use. 

And they are using it on our children.  At least no police officers were injured.

H/T FritzMuffKnuckle

The regular stream of “isolated incidents” involving SWAT raids on the wrong house took a curious turn.  From Delaware Online, via Radley Balko :

Steve Tuppeny was in the garage of his Middletown home having a smoke at 6:15 a.m., his wife and daughter asleep inside, when the Wilmington SWAT officers made their move.

Dressed in black, several officers rushed Tuppeny, ordered him to lie face down on the ground and handcuffed him. Other SWAT officers smashed the storm door in the front of the Tuppenys’ two-story colonial-style home, then used a battering ram to break through the red front door.

So you want to stand before a court and proclaim your righteous indignation in stentorian tones about the evils of drugs?  Make sure the joint doesn’t accidentally fall out of your pocket.  Or perhaps you want to sit high on a bench in judgment of miscreants who endanger others by failing to strictly adhere to the requirements of controlling a hurtling 2000 pound missile?  Then it would help if your own license hadn’t been suspended for 15 years.

This would be a schadenfreude opportunity, but for the fact that to indulge in such nasty business is to demean ourselves.

From the  New Orleans Times-Picayune comes the story of assistant city attorney Jason Cantrell,

Jason Cantrell, an assistant city attorney, was issued a summons under a city policy for low-level marijuana cases after a joint fell out of his pocket in magistrate court in front of NOPD officers. Cantrell resigned his city post late Monday, according to his wife’s statement.

“I absolutely do not condone his actions,” wrote LaToya Cantrell, who is a well-known civic activist in Broadmoor making her first run for public office.

“I love my husband unconditionally and am very concerned for his health and well-being, and for that of our family,” Cantrell said. “I hope that this incident will encourage Jason to seek the professional help he needs and ask that the public respect our privacy in this very personal family matter.”

A LaFollette traffic court judge was arrested last week after officers found him driving on a suspended license.

Wes Hatmaker, of Knoxville, was pulled over on Sept. 26 after a Jacksboro police officer saw him cross the center line on Main Street.

Hatmaker, a well-known Jacksboro attorney and LaFollette city traffic offense judge, told the officer he did not have his license because it was in his other wallet.

After running Hatmaker through a license database, the officer found Hatmaker’s license had been suspended more than 15 years prior, in May 1998.

Perhaps he was too busy handing out fines and minor jail sentences to have time to notice that he hadn’t received a license renewal since the late 90s?

It’s easy to enjoy and appreciate the unavoidable irony that goes along with people who take upon themselves the authority to judge others.  It’s even sweeter when that irony strikes at the heart of what they do, revealing them as utter and inexcusable hypocrites.  So now that we’ve basked in the weakness of schadenfreude, let’s step away from the pleasure and consider its larger lesson.

Both Hatmaker and Cantrell are human beings, flawed and, whether they want to admit it about themselves or not, victims of their own hubris.  Perhaps both performed their official functions well, and both would be best characterized as the sort of prosecutor and judge we would hope to hold their positions.  Maybe these were both good guys.  Let’s assume they were.

By separating what they did wrong from what they did professionally, we can accept that they made foolish mistakes, perhaps got themselves caught in fairly ordinary jams which could easily be shrugged off.  But their positions can’t be ignored.

I’ve known some former prosecutors who smoked dope.  They did so before they put on suits, and they continued to do so afterward. And they drank. Heavily. Then drove.  And I’ve known some judges who drive fast. Some very fast. And crazy. It’s not that they’re bad prosecutors or judges, but are they pure? Not quite.  Or more precisely, not even close.  And they drank too. Heavily, etc.

In fact, one would be very hard pressed to find anyone who came of age during the 1960s or 70s who didn’t smoke marijuana.  The president did. Taking it a step farther, anyone who didn’t might well be considered rather peculiar, given the times. 

What makes these stories significant is that the people who assume the mantle of judgment over others, whether by indictment or imposition of sanction, have managed to forget their own humanity and the humanity of their dear friends and loved ones.  There is no one so pure and chaste in any courtroom, from federal to justice court, who hasn’t done something for which they could have ended up in the defendant’s chair.  No one.

That doesn’t mean that anyone has committed any particularly heinous crime. We don’t murder people. We don’t rape. We don’t molest children.  But we also haven’t been paragons of virtue in every aspect of our lives.  We do wrong, and breath a sigh of relief that no one found out. 

We go on to be lawyers, prosecutors, judges, even presidents, while some other poor schmuck ends up being sentenced for exactly the same conduct.  There, but for the grace of God…

And as we exercise the discretion of our positions and decide whether to indict and punish others, we imagine ourselves to be above their conduct, better than others.  We wrap ourselves in a fantasy of righteousness so we can lecture and condemn the very conduct we got away with.

Regardless of your feelings about religion, Micah 6.8 is worth remembering.

Do Justice, Love Mercy, Walk Humbly with God.

Cantrell and Hatmaker fell from grace. They once pretended they were chaste, and because of that are now chastened.  Are you, judge, really any better?  Are you, prosecutor, so pure?  What will you ask of us should you fall from grace one day.  It can happen. If your day comes, will you pray that we are more understanding than you ever were?

There isn’t a doctor’s office in the nation that doesn’t hand patients a stack of papers to complete before they see the doc.  And we dutifully fill them out because, well, we just don’t care that much about the forms and expect them to be the typical bureaucratic nonsense that one must endure before getting to the point of the visit.  Everybody knows we do this, including the Sarasota County Sheriff’s Office.

And that gave them an idea.

Like many law enforcement agencies, prescription drug abuse was a problem in need of a solution, and rather than go through the onerous burden of awaiting people to engage in crime, it dawned on them that they could just sneak in through the back door of the physician’s office and slip in another seemingly  innocuous form, a blob of  mumbo-jumbo and was essentially guaranteed no one would ever read, and get it signed.

About midway down the form, it makes clear that it authorizes the physician to release otherwise confidential medical information to law enforcement if the physician believes that a crime has occurred. But who is going to read that far?  And even if they did, most patients would anticipate that the inclusion of the form along with the others was required before they would get to see the doc. 

For the most part, it never occurs to patients that they do not have to answer or sign a form just because someone told them to.  As much as we talk about freedom, we’re a remarkably compliant society, disinclined to refuse much of anything that appears even remotely official or required.

Armed with this notion, the Sarasota Sheriff decided that physicians should be part of his team. On the bright side, the doc’s weren’t inclined to sell out their patients quite that easily.

The medical information waivers — which did not carry any indication that they were written by a law enforcement agency — were handed out last year to about 30 local pain doctors, who were asked to have patients sign them. But the measure never gained traction with doctors, and, so far, none has submitted a form signed by a patient.

Moreover, the move has drawn sharp criticism from some in the Sarasota County medical community and from defense lawyers who call it a sly way to violate a patient’s constitutional privacy rights and protections under the federal Health Insurance Portability and Accountability Act, the so-called HIPPA [sic] law.

Normally, police would have to apply for a search warrant or obtain a subpoena for the records, said Assistant Public Defender Mark Adams.

“We want to make good cases. We don’t want anyone’s rights violated,” Duggan said. “We drafted the form to give the doctors a mechanism to contact us. It was really designed more as a safeguard to protect people’s rights than anything else.”

Kaspar and Duggan have no explanation for why doctors are not turning in any waivers.

Paul Sloan, who is not a doctor and has owned two pain clinics in Sarasota County since 2007, wrote much of the county’s [absurdly stringent] pain clinic ordinance. Sloan is blunt about what he will do to a patient suspected of breaking the law.

“All my patients sign a contract — and they have since day one — the most comprehensive contract ever seen,” Sloan said. “It does state they are waiving their rights if we are approached by an investigator, that we’ll turn over information to the sheriff’s office.”

The  video spread like wildfire throughout the blawgosphere because it was appalling.  It was horrible on its surface, and horrible in its reflection of what it showed about Lt. Jonathan Josey, the officer who punched the woman, as well as the general attitude of Philadelphia police officers toward this act of needless violence.  As  Radley Balko opined, 

 I’ll just make the obvious point others have already made: Even assuming the woman had been the one who threw water/silly string on the cop, the reaction should at least get him fired. And probably prosecuted. That it doesn’t appear to have been her makes it worse, but is kinda’ beside the point.

The point to protesting is to protest. To the extent there’s any efficacy to protesting, it depends on timing, and if the protest was directed to the Republican National Convention in New York City, the time would be when the convention was happening.  This seems to have gotten lost in the sauce of SDNY District Court Judge Richard Sullivan’s decision, which would otherwise have been a victory for protesters.

From the New York Times :

The judge, Richard J. Sullivan of Federal District Court, said that the city had lacked the required probable cause because the police were unaware of whether each individual protester had broken the law.

“An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct,” the judge wrote in a 32-page opinion. “But, no matter the circumstances,” he added, “an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.”

The decision in  Dinler v. City of New York consolidates 1983 actions filed after the 2004 convention at Madison Square Garden where police made mass roundups of people protesters, bystanders and journalists, to clear the areas, already far away from MSG so no person attending the convention would ever have to actually be annoyed by a protester, 

The City argued for “group probable cause,” conceding that there was no individualized probable cause for arrest, rejected based upon videos showing that there was no discrete group of people violating the law, but rather a sweep of everyone without regard to what  role, if any, they played, Judge Sullivan concluded that the police efforts to distinguish those individuals for whom probable cause existed from “innocent bystanders” was inadequate, and denied qualified immunity.

But the mass arrests for purported trivial offenses didn’t lead to the protesters being given summons, but full-blown arrests and fingerprinting.  In advance of the protests, the NYPD had decided to initiate a policy of clearing the streets at the first opportunity.

In response to the perceived threats of mass disorder, the City adopted the “No-Summons Policy,” which suspended the City’s ordinary policy of issuing summonses for violations,10 and the “Fingerprinting Policy,” which required fingerprinting of all persons arrested for RNC-related criminal activity (collectively, the “Policies”). Both represented a departure from ordinary practices, under which an officer who had probable cause to believe that an individual had committed a violation would merely issue a summons if the individual presented valid identification and had no outstanding warrants.

This, Judge Sullivan held, was fine.

The judge found that the no-summons policy passed constitutional muster because it was a response “to a threat derived from intelligence sources — namely, that demonstrators aimed to ‘shut down the City of New York and the R.N.C.’ through ‘continuous unlawful behavior,’ ” and that they “would be undeterred by the issuance of summonses.” He added that the policy “was in place only for the brief duration the threat existed.”

The ruling “validates two city policies the plaintiffs have spent almost five years exclusively litigating — to fingerprint arrestees and not to issue summonses,” Mr. Farrell said. “The court upheld these policies under the most exacting judicial scrutiny possible, finding them constitutional and warranted in light of the threats the city faced during the R.N.C.

The City argued that its policy didn’t freeze First Amendment rights because it was only targets at unlawful conduct. Judge Sullivan rejected this, noting that it was the combination of unlawful conduct plus RNC directed protest that gave rise to the special policy, and held that the policy, to pass constitutional muster, was subject to strict scrutiny.

And, he held, it did.  Because 9/11 changed everything.

Perhaps it is a feature of the post-9/11 age that people forget the dire consequences that can flow even from unlawful demonstrations, but it takes watching only a few moments of the video of the East 16th Street protest to see that no ambulance or fire truck could have gotten through that crowd of dancers, marchers, and instrument-wielding musicians. Writ large, the chaos on East 16th Street could have paralyzed the City and denied its residents access to the emergency services on which lives depend. The protestors simply had no right to hold ambulances, cabs, and commuters hostage by staging an impromptu parade in the middle of Manhattan.

Accordingly, the Court finds that the No-Summons Policy was narrowly tailored to address the unique challenges associated with hosting a four-day national political convention.

After all, how else could the police have assured that terrorism wouldn’t take over the city?  There was no alternative, according to Judge Sullivan, but to take them protesters and bystanders alike, en masse, off the streets. In his estimation, what stronger need to undermine constitutional rights could be needed than to prevent generalized threats of potential terrorism. As for fingerprinting, Judge Sullivan just didn’t see it as a big deal under the circumstances.

While no doubt the people arrested for “group probable cause” are happier than they would be otherwise, the decision effectively rewards the police for making the protests disappear, which of course was ultimately the point of the police action.  There is no large protest that doesn’t include someone jaywalking, or not complying with police orders to walk two by two. Mass action never seems to be as orderly as the police would like.

So the protesters, after having been removed from the streets, thrown into holding cells, fingerprinted and brought to arraignment can beat the disorderly conduct rap?  Well, that’s nice, but in the meantime, they could have accomplished the same thing by never protesting in the first place, and sitting at home in front of the telly shouting epithets at RNC delegates, since physically showing up for the protest isn’t going to do them any good after this decision.

The problem isn’t the conviction, though it’s better not to be convicted when there is no individualized basis to suggest anyone committed a crime, but that this decision authorizes the clearing of the streets first and a dismissal later.  If only huge numbers of feral protesters could conduct themselves in a way that pleased the police and didn’t embarrass the city. But since pleasing the police isn’t a core value of protesting, this decision would effectively allow the police to shut down protests at will, even if they can’t convict the protesters. 

Four years after the RNC protests, the rights of the protesters are vindicated. And the right to protest is dead.

The October 2012 Term of the Supreme Court opened yesterday, the first Monday of October. Lawyers and law professors, the media and those passionate about the law, will obsess over the cases. Tom Goldstein has created a business out of his former blog, SCOTUSBlog , out of it.

Does it matter? When is the last time the Supreme Court decided something that changed your life? When is the last time the Court issued a fully formed opinion that answered all the questions surrounding a disputed issue, without leaving a half dozen more questions unanswered so that people will spend the next generation arguing over the application of a new holding?

Sure, there are occasional sea change decisions, Booker, Heller and Citizens United come to mind.  But for the most part, does anything that happen at One First Street change much of anything in the trenches?  Does it change anything on your street?

From time to time, I’ll waste time and brain cells on Supreme Court decisions, parsing the words to determine who really won and what it really means.  Lawprofs will write thousands of posts over the most inconsequential of decisions, for lack of anything better to do with their time or to show how deeply they think in the hope of arriving at some truly significant thought.

But for a long time now, it’s been my sense that we’re gushing over essentially nothing. Rarely is anyone saved. Rarely is anything changed. Rarely does it matter to anyone in the trenches or on the street.

Am I missing something?  Is this important in your practice? In your life? Is it worth all the attention it received or are we just spinning wheels?

Update: There are days I wonder whether I’m using some foreign language here that is utterly incomprehensible to readers. Obviously, I’ve been horribly unclear as none of the comments reflect anything remotely resembling the issues raised.  Padilla? Seriously?

There are judges whose entire pre-judicial career was spent in a prosecutor’s office. There are judges who believe in a particular faith that differs from a defendant’s.  And there is a judge whose father was murdered.  Raising this as a basis for recusal will not only fail, but generate some actual antagonism toward the lawyer who raised it, if not the defendant who claimed it.

In Mile v. Ryan, the defense moved to recuse 9th Circuit Judge Susan Graber, who was regarded as pretty tough on defendants, based upon the fact of her father having been murdered. The underlying case was a murder for which the death penalty had been imposed, and the defendant sought a writ of habeas corpus.  During the pendency of the petition, the defendant changed lawyers, with his new lawyer moving for recusal.

Judge Graber refused to recuse herself.  More importantly, the other two judges on the panel, Berzon and Tallman, felt compelled to chime in.

Should our silence be misunderstood, however, we wish to state that were it appropriate for us to have participated in the recusal decision, we would have voted to deny the motion. Indeed, we regard the request itself as an inappropriate one.

The basis for the requested recusal was a tragedy in Judge Graber’s life that occurred close to forty years ago, her father’s murder and the subsequent prosecution of the perpetrator. The suggestion was that Judge Graber cannot fairly decide this capital murder case because of that history and some broad similarities between the two criminal cases.

Judge Graber has been a judge for almost twenty-five years. In that time, she has sat on numerous capital murder cases, voting to affirm some and to reverse others. She has never been asked to recuse in any of them and never has. There is absolutely no reason she should do so now.

Nothing in here suggests a lack of bias or an affirmative reason why Judge Graber would be able to overcome her personal experience, but that isn’t the point.  When the Senate confirmed her appointment, she came with a life filled with experiences, like every other judge on the bench. No judge lived in a bubble, devoid of history that bears upon their sensibilities and perspective. Every judge comes with bias, as does every other person in the world.

All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. Some of us have served as prosecutors and others have not; some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary; some have children and other relatives with disabilities and illnesses, physical and mental, while others do not; some have had personal experience, directly or through family members, as crime victims, while others have not; some have relatives who are police officers, civil rights activists, or journalists, and others do not; some served in the armed forces and others did not; some had personal experiences as immigrants and others did not. These life experiences do not disqualify us from serving as judges on cases in which the issues or the facts are in some indirect way related to our personal experiences.

The point is the ability of the judge to overcome their personal bias and rule to the best of their ability, as fairly as possible.

This same “life experience” argument was raised with Judge Vaughn Walker in Perry v. Brown, which is noted in the opinion.  Was Judge Walker incapable of deciding the gay marriage issue because of his sexual preference?  If his being gay precluded him from being fair, would a heterosexual judge not have similarly been presumed biased based on his preference?

It’s a circular argument, and if we were to demand a judge with absolutely nothing in his personal life that could potentially influence his thinking, there would be no judge who fit the bill.

For a client to raise questions as to a judge’s potential bias is routine. Whether real or paranoia, defendants regularly raise issues of their judge’s prejudice and presumed inability to be fair.  Indeed, in many instances, it’s just a matter of a judge being unduly oriented toward the prosecution, which is less a flaw with the judge than a flaw with judicial selection. 

Most judges are prosecution oriented, because that’s the prevailing attitude of the pool from which judges are picked.  The only answer to this complaint is to get over it, as there is nothing to be done about it once a President appoint and the Senate confirms. They get robes and we get burned. That’s how it works.  If you don’t like it, write your senator, but it’s not going to help you much today.

However, the decision of whether to seek recusal of a judge is one that belongs exclusively to the lawyer, and making a motion based on a reason that neither has any likelihood of success or substantive basis is likely to have consequences.

We well understand that this is a death penalty case, and that the petitioner’s lawyers properly regard it as their duty to try appropriately to raise every colorable issue that could possibly redound to their client’s benefit. But asking for the recusal of a member of this court who has decided capital cases for over two decades because of something that happened well before she became a judge is a request lacking even colorable merit. And doing so by reciting in detail the facts of a long ago, tragic incident in her life, requiring her to relive them yet again and exposing them anew to public view is, in our opinion, beyond the limits of appropriate representation.

The upshot wasn’t a new judge (who, I might add, could be little different than the one already on board), but a panel, at minimum, that will remember that you made a very poor decision in both raising the issue and the manner of presentation.  A motion like this may well demand a “scorched earth” approach, but remember that the lawyer doing so may just as well get burned.

It’s understandable that a defendant, not to mention his lawyer, wants desperately to get as far away from a hanging judge as possible. Indeed, it’s one of the grave failings of the system that the exercise of discretion, despite platitudes to the contrary, is so dependent on a judge’s individual proclivities, often being the difference between decades in prison.  But the system is flawed. Judges are flawed. To the extent there is a trick, it’s not making a bad situation worse.

It is extremely rare that a colorable basis exists to move for recusal.  Believing that a judge is inclined to rule against you just isn’t one of them. Don’t make it worse by trying anyway.

Despite the stench of rotting corpses of the “greatest thing ever” start-ups permeating the internet, another new one is soon to hit the skids with claims of providing what every desperate lawyer wants: leads. Called myRight, once again a couple of law students think they’ve come up with a way to parlay the tried and failed lawyer Q & A concept into a money maker.

Most legal problems are fairly common, so you shouldn’t have to fork over thousands of dollars in legal fees.

[A] Los Angeles-based startup wants to give you a free, online pre-consultation about your legal issues before you ever call a lawyer or go to a lawyer’s office. MyRight is a graduate of Los Angeles incubator, StartEngine and is the brainchild of law students, Michael Niu and Nikhil Jhunjhnuwala.

The site does what it says on the tin — it provides non-lawyers with the tools to solve their own legal problems.”We both found that lawyers spent a huge amount of their time answering and asking the same questions when new clients came into their offices,” said Niu. “We thought there must be a better way to automate this process.”

It’s amazing how law students know all there is about the practice of law, considering the din about how law students learn nothing about the practice of law.  Apparently, the whine stops when the marketing begins.

Despite the typical silly claims, most notably that myRight is set to compete with Avvo Answers, its hook bends a different way.

Got a legal issue? The site will lead you through a series of simple questions that get to the heart of the complaint. For instance, if it’s a housing query about a security deposit, it might ask you simple questions like, “Have you asked your landlord for a refund?” Throughout the process, you’ll be provided with relevant and simple information.

The image it raises reminds me of Windows’ troubleshooter screens, asking basic and annoying questions (“Is your computer plugged in?”) for those who can’t figure out how to solve a problem without the most simplistic help.

But if the information is reasonably accurate, this may work.  There are a great many people who haven’t got a clue whether they have a legal matter to pursue, and operate either out of ignorance, based on myths or what the lady on the corner told them.  An enormous amount of unproductive legal time could be avoided, saving both potential clients and lawyers time and expense, by weeding out those people either need legal help or don’t before they meet with a lawyer.

Based on the questions on Avvo Answers and the dreaded emails from “potential clients” seeking free advice, there is a huge gap in the many people’s understanding of the law that is in desperate need of filling.  For those who give free consultations, hour upon hour is lost to meeting destined to go nowhere, with angry people who demand that lawyers fix whatever perceived problems exist despite their being in the wrong or having no basis for suit.  The idea of educating people before they call, saving them the angst and the lawyer the time, has some merit.

The initial catch is that the concept is only as good as the quality and clarity of the weeding process. 

“People think the law is complicated, but most people would be able to make much better decisions if they simply knew the basics and whether talking to a lawyer is a good decision,” Niu said. In future, he told me, lawyers will use the site’s proprietary CMS to build their own helpful step-by-step guides on a variety of legal topics.

Well, the law is complicated, which is why they build law schools and courtrooms. On the other hand, there are basic limitations that, if carefully conceived, can serve to illuminate the process for clients and help them to realize what they should, or should not, do.  The problem is that myRight expects lawyers to to “build their own helpful step-by-step guides.”

The mantra in Field of Dreams was “if you build it, they will come.” Niu wants someone else to build it, and that opens the door to a bunch of problems. First, what if they don’t? Second, what if they do, but do it wrong? It’s not like two law students would have a clue whether some lawyer’s guide is accurate. Third, given that the motivation of lawyers who become embroiled in these scheme is to get clients to pay them money, is it reasonable to expect guides to be geared toward enlightening people or toward convincing them to retain the lawyer who crafted the guide?  What is missing is any means of assuring the efficacy of the process, which is a huge problem.

And even if the guides work, where does it go from there? While the guide concept could prove useful, the business model places myRight in the middle of the same, old, useless lead-generation scheme, a niche filled with dozens of marketers who try to skim a bit off the top at the expense of desperate and foolish lawyers.

The company plans to make money by asking lawyers to pre-pay for leads. If a legal complaint is too complicated, you may need to seek additional, expert guidance. The idea is that lawyers will be able to connect with these users through the site.

Because there aren’t enough cold-calls to law offices promising wealth and success if only they pre-pay for leads.  You know, the scam caller who asks if you can handle more DUI cases because they have clients desperately seeking lawyers?  Do we really need another person to hang up on?

And for the potential client who thinks only about a way to find cheap lawyer, the hidden risks remain.

To the extent myRight could serve both lawyer and client with its troubleshooter concept, I’m all for it.  But I have some trouble believing they can pull it off given their expectation that lawyers are going rush to build their business for them by doing the legwork needed, and doing it sufficiently well not to be dangerous or scummy. 

Yet, the concept will be captive to the same old lead-generation scheme that is already being used in a scientific experiment to empirically determine how many lawyers are clueless.  Adding another to the mix will neither improve the scheme nor expand the pool, as even lawyers eventually realize that they are not related to a Nigerian prince and internet generated “leads” are worthless.

Via a post by Mark Esposito, one of the weekend guest-bloggers at Jonathan Turley’s place, comes another teenage bullying story :

Whitney Kropp, a self-described outcast with just a handful of close friends at Ogemaw Heights High School, was picked to be the female representative of the sophomore class royalty. It certainly came as a shock.

But hours later, the 16-year-old learned classmates voted for her as a joke. She spent the night in tears.

I’m like, ‘Wow, I feel like trash,'” Kropp said. “I feel like I’m a little thing that no one really cares about.”

That night, she said, she contemplated ending her life “right here, right now.”

Hysterical, right? Let’s vote for the unpopular girl so we can have a great laugh at her expense.  While my position has long been clear that this shouldn’t give rise to a new law creating a crime of behaving like a total jerk, mean, selfish and thoughtless, the flip-side is that there is nothing about being mean to others that makes you anything other than an absolute idiot.  It’s not funny. It’s cruel.  Your father ought to take you the woodshed, each and every one of you, for this behavior so you learn that it’s not acceptable to go through life acting like such a douche.

But this time, things turned around on the little snot-nosed jerks who thought they could grad a cheap laugh at Whitney Kropp’s expense.

But thanks to a push from her family and friends, she decided to embrace what happened and turn the tables.

“I can just prove all these kids wrong … I’m not the joke everyone thinks I am.”

When word of the prank spread, local businesses stepped up to the plate.

Opting to stay on the homecoming court was a tough decision, Kropp said. That bold move prompted local businesses to donate her homecoming gown and shoes, while a salon gave her hair a new ‘do.’ A Facebook support page created for her has more than 96,000 “likes.”