Oscar Wilde notoriously said a cynic is someone who knows the price of everything and the value of nothing.  Todd Rutherford knew the price of a good book review.  From the New York Times :

In the fall of 2010, Mr. Rutherford started a Web site, GettingBookReviews.com. At first, he advertised that he would review a book for $99. But some clients wanted a chorus proclaiming their excellence. So, for $499, Mr. Rutherford would do 20 online reviews. A few people needed a whole orchestra. For $999, he would do 50.

There were immediate complaints in online forums that the service was violating the sacred arm’s-length relationship between reviewer and author. But there were also orders, a lot of them. Before he knew it, he was taking in $28,000 a month.

Consumer reviews are powerful because, unlike old-style advertising and marketing, they offer the illusion of truth. They purport to be testimonials of real people, even though some are bought and sold just like everything else on the commercial Internet.

As my experience at the LawTech Camp [highlighted by legal futurist and technology consultant, Richard Susskind] makes clear, there is tremendous creative ferment taking hold in many corners of the legal profession, albeit the safe and established legal brands are not leading the way.  So that is our dilemma—in the year 2012, there is no conservative path that will take most law students to where they want to go. Everything options has risk. 

As a young lawyer once explained to me, integrity is a luxury that young lawyers can’t afford.  They need to make a living, and they will do whatever they have to do to accomplish it.  Without risk, there’s no reward, and as Bill says, “there is no conservative path that will take most law students to where they want to go.”  So why not?

An Illinois federal district court recently analyzed the Wiretap Act as it applies to packet sniffing and held that “the interception of communications sent over unencrypted Wi-Fi networks” does not violate the statute. In re Innovatio IP Ventures, LLC Patent Litigation , No. 11 C 9308 (N.D. Ill. 2012)….

After a discussion of how packets are transmitted in a wireless network and the meaning of the word “intercept” in the Wiretap Act, the court determined that the proper “question is not … whether the networks are “readily available to the general public,” but instead whether the network is configured in such a way so that the electronic communications sent over the network are readily available.” The Wiretap Act provides an exception if the communications are publicly available (18 U.S.C. § 2511(g)(i)). The court concluded that the communications themselves are readily available because they are “open to such interference from anyone with the right equipment” – equipment available for a couple hundred dollars and the right open source software.

(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—
(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;

Many Wi-Fi networks provided by commercial establishments (such as coffee shops and restaurants) are unencrypted, and open to such interference from anyone with the right equipment. In light of the ease of “sniffing” Wi-Fi networks, the court concludes that the communications sent on an unencrypted Wi-Fi network are readily available to the general public.

I don’t think that’s right. Look closely at the text: “configured so that such electronic communication is readily accessible to the general public.” In my view, that text focuses on the intent of the designer — the person who does the configuring of the network so that it works a particular way — to design the network so that the general public was supposed to be able to access them. Of course, you might not know the actual intent of the designer with 100% certainty. But with many technologies, it’s obvious what counts as an expected use and what counts as an unexpected use.

Any tension between that conclusion and the public’s expectation of privacy is the product of the law’s constant struggle to keep up with changing technology. Five or ten years ago, sniffing technology might have been more difficult to obtain, and the court’s conclusion might have been different. But it is not the court’s job to update the law to provide protection for consumers against ever changing technology. Only Congress, after balancing any competing policy interests, can play that role…. Unless and until Congress chooses to amend the Wiretap Act, the interception of communications sent over unencrypted Wi-Fi networks is permissible.

While I take no issue, per se, with comments from non-lawyers at SJ, it’s worth noting that this is a blawg (law + blog = blawg).  What that means, at least to me (and I have the only vote that counts here) is that what appears in the comments is an arguably accurate reflection of the law.

My reason is straightforward: I am concerned that someone who reads something here not be misled or confused as to the law.  This is where the problem arises.

Due to the nature of the things that interest me, what I charitably refer to as my “content,” it tends to draw a group of readers who are not lawyer, but are very angry with the law, the courts, the police and the prosecutors.  And they use every opportunity to make their views known.

Much as we may, at least superficially, share certain sympathies, my tolerance for these sorts of comments is limited.  They are, in large measure, counterproductive to any meaningful effort to improve the things that are wrong with the system, as the nature of simplistic, angry rants reinforces beliefs that the antagonists to the system are a bunch of ignorant nuts.  While finding a conspiracy under every rock, or blindly cheerleading your team against the other, may thrill the angry masses, it’s not in the least persuasive to lawyers and judges in getting them to see the light.

The other side is that the angry folks tend to significantly misstate the law.  By significantly, I mean mindnumbingly, grotesquely, horribly wrong.  It’s not entirely their fault, as they are neither educated in the law nor experienced in the trenches. There a bunch of other websites and blogs that are gathering places for the angry, the haters, and they reinforce erroneous understandings by promoting “experts” who may be on the right side of an issue, but get there by taking a path of ignorance and irrationality. 

My view is that these websites and blogs (note blog, not blawg) serve a purpose, allowing angry people to vent and disseminate substantive information about bad things that are happening.  At the same time, they make people stupider.  Rarely will a lawyer stumble in and try to sort out the arguments and claims, as it’s just too difficult. These are deeply embedded, if utterly insane, beliefs.

What I fear is that SJ will become a gathering place for the angry and ignorant.  I will not allow that to happen.  It’s not that I don’t appreciate the anger, or necessarily disagree with the message, but I cannot, I will not, allow the comments at SJ to become a festering stew of angry people whose comments either chase knowledgeable people away or make people less knowledgable for having read them. 

This happened yesterday with a  comment by FitzMuffknuckle about ignorance of the law. which has become a rallying cry against cops, prosecutors and judges who err in the performance of their duties.  I have great respect for Fritz, who is a moderator at Reddit’s Bad Cop, No Donut, and with whom I’ve had a number of discussions. He may not be a lawyer, but he’s shown a sincere interest in elevating the level of understanding of the law. He’s also been very helpful to me, correcting my typos and providing me with stories.

My response to Fritz was followed up by another non-lawyer commenter, who failed to take a cue from my response and instead insisted on pushing the point. That’s where I draw the line.  In another example, a commenter who seems to have an incredible facility with blaming the cops even when the post has nothing to do with the police, offered what to a non-lawyer might seem to be legal analysis. It was dead wrong, but the non-lawyer wouldn’t know that.

I emailed to tell him that I would appreciate his not putting anything in his comments that suggested the state of the law, lest someone think he was a lawyer and credit his comment to their enormous detriment.  When a non-lawyer reads a post written by a lawyer, they have a reasonable expectation that the information isn’t totally wrong or utterly insane.  It’s my responsibility, as a lawyer and as the guy with the keys here, to make sure people’s expectations aren’t dashed on the rocks of ignorance.

And as long as I’m on this point, there is something else that has been troubling me for a while. Some of my friends in the blogosphere/blawgosphere don’t share my concerns. I hesitate to attribute reason to their choices, but they don’t seem to worry about whether things posted by others, whether in the comments or by guest writers,

The bloggers/blawgers are thoughtful and accurate when it comes to their own writing, yet feel no compulsion to act when someone else muddies the waters with misinformation.  I keep waiting for them to jump in a correct some monumental error or absurdly inane comments or posts. I’m still waiting.

I recently had an email exchange with a person whose blog is both credible and informative, but who has handed the keys to the place to others while the person pursues other interests.  Some of the posted in his absence were utterly ignorant.  The person responded that if I didn’t like what was posted, don’t read it. Point taken.  However, the lack of concern about credibility is something that will color my view from now on.

While SJ exists primarily as a vehicle for me to indulge my enjoyment of writing, there remains a critical concern that nothing that appears here makes a reader stupider for having read it.  It may not endear me to commenters when I criticize what they’ve written, or tossed them off as commenters if they can’t control themselves, but that’s the price I pay for my beliefs.  That others don’t share a similar concern for what appears on their blogs/blawgs disturbs me deeply. 

The internet is a wonderful thing, but like all things, it can be used for good or evil. Making people stupider is evil. It’s the responsibility of every credible blogger/blawger to not let that happen.

In a doctrinally bankrupt decision, the Supreme Court in  Michigan Dep’t of State Police v. Sitz, majority opinion by Chief Justice William Rhenquist, held that there is a caveat in the Fourth Amendment written in ink only visible to six member of the court that allowed an exception to seize people who have given the police no reason in the world to be seized if the state can come up with a really good story about why it wants to.  Sobriety field testing was just such a story.

The court only had a few conditions in letting the cops have their way: that it be truly random, and not used as a pretense to profile drivers of a color the cops didn’t like, and that its randomness be reflected by an advance plan of what they would do, when and where they would do it. Because it would be pretty easy to claim an ad hoc roving checkpoint whenever the police decided they needed to make some collars for their quotas otherwise.

The idea was that an operational plan would be filed in advance of a checkpoint, and it would reflect the random manner of stopping otherwise innocent people.  Whether every third car, maybe sixth, whatever, but that was as far as the court would let them go.

Still, this proved too hard for cops in Florida.  From WTSP :

So let’s go back to that DUI checkpoint last December. Pasco Sheriff’s deputies, Florida Highway Patrol troopers, and Tarpon Springs Police officers were in charge. The operational plan they filed stated they were going to pull over every third vehicle. Daniels noticed on the police’s own squad car video recordings that the three agencies were breaking the rules. The video clearly shows the flagman at the front of the checkpoint wasn’t following the plan and flagging in three and four cars at the time.

[I]nstead of dropping the cases, the state attorney’s office took a new tactic and it got ten law enforcement officers who worked that night to sign affidavits saying the operational plan was followed, which was a bald-faced lie.

A spokesman says Assistant State Attorney Vin [irony alert] Petty missed that fact while he was at the checkpoint, and when he first watched the video, and that’s why he had officers sign the affidavits. The police agencies also claim they had no idea they were violating the law.

Clearly, there is no reason to expect that either the Assistant State Attorney or the multitude of officers from various departments would have any clue as to what the lawful requirements of a checkpoint might be. That would require training, perhaps even reading a Supreme Court decision (if not the Classic Comics version), and would take time away from keeping our roads safe.  Or perhaps the people involved were intellectually challenged, making counting by threes beyond their ken, and thus better suited for work at the Department of Justice.

The very notion of checkpoints, where people for whom no suspicion exists are seized, is a facial affront to the core of the Fourth Amendment, that no person be subject to unreasonable search or seizure.  Checkpoints, by definition, provide no reason. Even random, they elevate the state’s concern that people are having too much fun over the citizens right to not be seized unless there is reason to believe he is breaking the law. 

But even if the Supreme Court majority is willing to shut its eyes as tight as possible, and picture an exception in the law to appease the MADD gods, would it kill the police to formulate a lawful plan and execute it properly?  Perhaps a remedial course in counting by threes would help?  Or maybe just stop lying in affidavits to cover your flagrantly unlawful conduct?

Or maybe its time to revisit the concept of random checkpoints because it’s nearly impossible for the defendant to know whether they’ve been conducted lawfully?  This time, there was a dashcam video that enabled eagle-eyed Sammis to see that the plan was totally ignored, but eventually the cops will figure out that if they point their cruiser the other way, no one will be the wiser.

Take away the robe and they’re just as  likely to get beaten as anyone else.  But when they sit on the bench, literally or figuratively, they are quite special.  We call them “your honor.” Their jokes are significantly funnier than they were before they were judge. We listen to what they say and avoid saying anything in response that will piss them off.  Not that the occasional snarky thought doesn’t go through our mind.

But what about when the judge uses his robe for his own collateral benefit?

At Defending People, Houston criminal defense lawyer Mark Bennett was the target of Judge Ruben Guerrero, who had a lawyer threaten Bennett for creating the domain JudgeRubenGuerrero.com, which is slightly less than helpful in the judge’s re-election campaign. 

Ethical proscriptions compel lawyer to be honest and help educate the public about the law, which should certainly cover Bennett’s effort to let people know that he doesn’t think they should vote for Ruben Guerrero because he’s not a very good judge.

Guerrero is unfair to the defense.

“Guerrero never awed attorneys with his legal brilliance on the bench.”

Ruben Guerrero thinks that prosecutors represent complaining witnesses.

On the other hand, Judge Guerrero’s lawyer argued that Bennett, by putting up a website that exhorts voters to “Unelect Judge Guerrero,” has appropriated the Judge’s name.

Appropriation falls under the category of invasion of privacy and protects the right of an individual to control the commercial use of his identity.

This, of course, raises the question of what “commercial use” Judge Guerrero plans for his identity. 

Standing up to a sitting judge’s threat isn’t something most lawyers would do. But most lawyers aren’t Bennett, and so he responded to the take-down letter’s threat in the best criminal defense lawyer fashion.

[P]lease describe what you consider “the necessary legal action.” I’m a criminal-defense trial lawyer; I need things spelled out. 

And maybe in the exercise of judicial discretion, Judge Ruben Guerrero has not been heard from since.  This doesn’t mean that he won’t use his office to try to smack Bennett should Ruben be re-elected and Bennett come before him, but under the circumstances, between the smarter move of recusal or the stupider move of pay-back followed by well-founded judicial complaint, perhaps Judge Guerrero’s lawyer has advised him that the better move is to protect his brand on his own end rather then swing his robe in Bennett’s direction.

But then, are there no benefits to being a sitting judge beyond having lawyers laugh at your jokes?  A brouhaha has occurred, reflected in a  Daily News editorial questioning whether judicial license plates in New York serve to let judges break the law with impunity.

The state Commission on Judicial Conduct is seeking public comment on whether judges should get the perks of license plates that advertise their positions on the bench or park-where-you-want placards.

You can imagine the responses New Yorkers will provide, ll of which will boil down, minus expletives, to: No way, no how.

The commission was prompted to make inquiry by the case of an upstate part-time town justice who arranged to fix a ticket she had gotten, as well as a ticket issued to the wife of another justice.

While “ticket fixing” by judges for friends, kids and themselves has always been available, provided the judge is inclined to break the law for his own benefit. But that’s an entirely different issue than whether judicial plates give judge’s a free ride.

Further, the commission asserted, “judicial license plates distort the normal process of enforcing traffic laws and the delicate position faced by law enforcement officers when they stop a vehicle with judicial plates.”

Meaning cop sees that speeding driver is a judge and so goes easy. Meaning judge gets an unwarranted break without having to say anything.

The plate does the identifying. The plate does the talking. The plate amounts to a moving violation of judicial ethics.

Perhaps, but judicial plates allow judges to park in reserved spots around the courthouse, which seems like a perk they certainly deserve given the crappy pay they receive and the expectation that they be on the bench to do their job.  Placards could perform a similar purpose, but they’re much easier to fake.

Yet the core of the complaint is that cops won’t ticket someone with judicial plates. Of course, the worst kept secret on the road is cops won’t ticket fellow cops or their family members and close friends, which is why they hand out their union cards. If we’re going to start worrying about who’s cheating the law, judges are hardly the problem when compared to a police officer’s 18-year-old son.

Rather than give judges a free pass, I suspect that judicial plates make them a target for criticism, if not from the cops, then from the public. Given the ubiquitous cellphone video cameras, judges have to be on their best behavior when driving so that some citizen doesn’t video their wild driving and put it on Youtube or a website about judges behaving badly.  If I had judicial plates, I wouldn’t do a thing to open myself to criticism because I couldn’t hide my wrong from the public.

The  New York State Commission on Judicial Conduct is  seeking input on whether judicial plates are a license to break the law.  It strikes me that they would do better to not only require judges to use judicial plates, but to include on the plates a “How’s my driving?” phone number to call if a person empowered to send people to prison for violating the law can’t manage to adhere to the law himself.

As for cops giving judges a free pass, spare me. The hypocrisy inherent in that argument is to ridiculous for words. I would suggest a similar “how’s my driving” on all cop cars, but that would just mean they were put on the list for a bravery citation, which they would trot out the next time they testified to prove to the jury what fabulously trustworthy police officers they are. 

And for those who worry that judges are getting away with something, there is always the Queen’s DA’s refusal to do anything about the blow to Judge Raffeale’s throat or Bennett’s website to remind them that not even judges can avoid the consequences of the law.  Not all the time, anyway.

Florida fashionista lawyer, Carolyn Kellman, is looking really good right about now.  She returned a pair of shorts to a store called “Forever 21,” and received a refund that was one cent less than what she paid.  From the Daily Business Review :

Carolyn Kellman, whose fashion sense was profiled in the Miami Herald in 2007, paid $14.46 for the shorts at the Forever 21 store in the Dolphin Mall on May 12, the complaint filed by Kevin Love of Criden & Love in South Miami said.

Kellman, an attorney with the Strickland Law Firm in Coral Gables, returned the shorts to the Forever 21 in the Shops@Sunset Place on May 30 but was credited $14.45, “or exactly $0.01 less,” the complaint said.

On June 27, Kellman was charged $11.57 for a skirt, also black, at the Sunset Place store. She returned it July 13 and was credited $11.56, according to the complaint, which attaches copies of her receipts and alleges breach of contract, unfair and deceptive practices, and unjust enrichment.

How many people would think “class action” over a penny?  But then, take a penny from every person who returns a garment and, 1.500001 million returns later, you’re talking upper court threshold, baby. Seriously, Kellman alleges this is a penny-skimming scheme, the theory being that the amount being glommed is too small for anyone to take any real action.  If a customer complains, give them back their penny, but the expectation is that it’s not even worth the time of a phone call, and few people are going to demand the return of their cent.  Mind you, the same theory holds when the amount is a dollar, except companies that sneak an extra dollar in their billings are doing 100 times better than Forever 21.

While many will snicker at a case like this being brought as a class action, this is what I consider one of the best uses of class actions available.  This falls precisely into the realm, where a business is taking money, some might call it stealing, to which it’s not entitled, but in amounts too small for anyone to fight over.  It’s still wrong, indeed very wrong because of how calculated it is, and yet escapes redress.

The irony in a case like this is that, as is invariably the complaint about class actions, the lawyers make out like bandits while the class gets a couple pennies.  In this case, that might be full compensation, but the unseemly aspect of the lawyers getting millions is always troubling.  This is why guys like  Ted Franks keep an eye on such shenanigans.

And it appears quite likely that this case may produce substantial legal fees for the lawyer representing the class despite there being extremely limited recovery for the class itself.  Indeed, this may end up with the company promising to stop glomming pennies and nothing more.  Yet, the lawyers will get paid, with the zeroes being on the other side of the decimal point.

But how else are companies to steal small to be stopped?  Certainly, no one would argue that it’s acceptable for companies to withhold money when they shouldn’t, but which one of us would want to spend 1000 hours prosecuting a case over a penny?  Indeed, it would never happen, since they would just flip you a dime and tell you to keep the change.  And then continue skimming pennies from everyone else.

The Herald photographed [Kellman] wearing Christian Louboutin shoes, a Panerai watch, Sacri Tabu bracelet and gold beads from Studio LX South Miami, a vintage ivory pendant on a black suede cord by Shelly Litvak and diamond stud earrings. She was holding a Balenciaga motorcycle weekender bag.

Nonetheless, I admire this lawyer’s tenacity and the fact that was sufficiently pissed off to do something over a penny.  You go, girl.

Ordinarily, a defendant claiming that he murdered someone and meant it is a darn good reason to convict him and make him a guest of the state for a good, long time.  But for Omar Gutierrez, this is the argument for freedom in his habeas proceeding.  And it’s got the Second Circuit troubled.

Via the New York Law Journal, Guitierrez was convicted of murder in 2001, but of the “depraved indifference” flavor pursuant to Penal Law 125.25(2), defined as murder under

circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

“The change in New York law on depraved indifference murder has created a series of problems for federal courts on habeas review,” he wrote. “Since the questions these cases raise are ones that are profoundly of New York law, when New York courts have spoken on the merits of a conviction for depraved indifference murder and on whether the evidence in a particular case was legally sufficient, we have tended to defer to that judgment.

“We have done so because, ultimately, how New York wishes to define depraved indifference murder is a question for New York,” he continued. “Difficulties arise, however, when, as in this case, New York affirms the conviction on procedural grounds that are not in keeping with federal requirements. For then we are left to judge a conviction that New York courts have not evaluated on the merits.”

If it sounds particularly wiggly a rationale, that’s because it is. Obviously, interpretation of New York law should be left to the New York courts.  But that’s what the New York Court of Appeals did in Payne and its predecessors.  What “series of problems” is Judge Calabresi seeing? 

Calabresi therefore certified two questions for the Court of Appeals: whether Gutierrez’s conduct was consistent with the standard for depraved indifference murder, and whether the changes in the law between his trial and final conviction should apply retroactively.

The first question sounds remarkably like a full-blown punt, the circuit asking the Court of Appeals to decide the case for them.  As for retroactivity, Payne wasn’t quite a new rule, but a refinement of the 1983 decision in People v. Register, which held that “depraved indifference” is a mens rea requirement. While it provided some additional clarification, the rule already existed.

But Judge Calabresi seems to signal the real problem:

“Let us be clear: We, as a federal court, are reluctant to release defendants whose defense to depraved indifference murder is that they were guilty of intentional murder, where those defendants were acquitted of intentional murder and convicted of depraved indifference murder at a time when New York seemed to permit this,” the judge said. “We will, of course, follow the law of New York. But before we order the release of such defendants, we wish to be sure that this is the result New York wants.”

When Guitierrez was tried, the common practice was for prosecutors to charge both intentional murder and depraved indifference murder as alternatives, leaving it to the jury to decide under which subdivision it preferred to convict.  Indeed, the point was to foreclose the defendant’s argument that he meant to kill or was merely reckless in killing, and cover both bases.  The degree of crime was the same, as was the punishment. For the prosecution, either one would do.  For the defense, there would be conviction either way.

This is where the line in Payne, that a direct one-on-one killing could rarely be depraved indifference, caused problems. The prosecution would be required to prove intentional murder, and couldn’t merely throw both theories out there and let the jury pick which flavor it preferred.

You can’t blame the circuit for feeling queasy about the idea of cutting Guitierrez free based on the argument that he committed intentional murder.  If ever an argument comes off as utterly disingenuous, this is it. Yet this is also the law, ugly though it may be.  And applying the law is why they pay circuit judges the big bucks.

The New York Court of Appeals is under no duty to answer the certified questions, though it usually does.  The problem is that they will be confronted with the same ugly choice, and whether they will adhere to their view in Payne, muddy the waters further to avoid setting Guitierrez free or desperately try to find some way to circumvent the hard questions.  No judge wants to reverse a conviction based on the defense that killer intended to kill.

Like everyone else, petty annoyances happen regularly around the Greenfield house, like yesterday when my daughter informed me that channel 51 was black on the TV.  As it turned out, so too were channels 46 through 50, though channel 44 gave me a clear picture of women from New Jersey.

My initial reaction was to ask her if there was really anything she wanted to watch on channel 51, hopeful that whatever problem we were experiencing would magically fix itself within a few hours.  She told me that not only did she very much want to watch channel 51, but it was critical for the continuity of her appreciation of the lives of the Kardashian family.  Where did I go wrong?

The truth isn’t that I was secretly pleased that she would be unable to watch a show that, in my opinion, should not exist, but that I didn’t want to call Cablevision and deal with the outage.  I couldn’t bear another voice mail tree.  But it needed to be done, and so I did it.  I was amused by the options offered after the three and a half minutes of hearing how much they cared about me.  I could press 1 to pay a bill, 2 to tell them how much I appreciate Jimmy Dolan or 3 to express my hatred for their competition.  Or hold for a customer service representative.  I held.

The customer service representative, Natasha, spoke loud and clear, in impeccable English.  She understood the problem and had a ready fix at hand, involving her reprogramming my cable box from her end, with only my rebooting the box afterward.  It was painless and effective, fixing the problem as far as I could tell as channel 51 was suddenly there, in sufficient HD to see the pancake makeup on Kim’s face.

I thanked Natasha, and she then told me that she thought it best to have a technician come to my house to make sure the box was working properly, or to switch out the box.  She told me that there was an appointment available today, Labor Day.  The technician would come between 8 a.m. and 8 p.m. 

I thanked her for her concern, but responded that Cablevision doesn’t pay me enough to wait 12 hours for an appointment.  She laughed, and apologized that she couldn’t nail the time down any better, but that was the only option she was offered.  I told her I understood, but since channel 51 was working, I would leave it at that for now and deal with an appointment if it was necessary. She asked if there was anything else she could do for me, and then we exchanged pleasantries and hung up.

There was no point in telling her that I had another battle going on with Cablevision that remains unresolved.  A week ago, having nothing whatsoever to do with me, some Cablevision trucks were busily doing something at the corner adjacent to my house. In the process, they cut some tree branches in front of my house and left them on my property. I expected someone to return the next day and take them away. I can be so naive sometimes.

After a few days, I contacted Cablevision to ask them to remove the debris.  The customer service representative, Chris, informed me that this was unacceptable. I responded that I agreed. He told me he would contact the field supervisor and have it addressed immediately, and then asked me if there was anything else he could do for me. We then exchanged pleasantries and hung up.

Two days later, having heard from no one at Cablevision and watched as the last green leaf on the branches turned brown, I had the branches removed and taken away at my expense.  I called again, this time speaking with a fellow whose name I couldn’t understand with a thick Indian accent.  He apologized. I thanked him for his apology, but explained that I was not interested in attrition, but compensation.  I told him that Cablevision should pay the cost of removal.

Now, the time spent speaking with Cablevision was of significantly greater value than the trivial amount it cost me to have the branches removed.  It was more a matter of principle, that they should not get to discard the detritus of their work on my property without having to pay for it.  This is something I believe in doing, despite the fact that it rarely makes financial sense. I believe in incentives and disincentives, and that requires effort on my part even if it ultimately costs more to prevail than ignore.

The representative whose name I couldn’t understand asked me to hold.  After a few minutes, he told me that his supervisor had authorized him to offer me a $30 credit for removing the branches. I thanked him for the offer, but explained that $30 was not the amount I spent. He told me that was all he could do, but he could have the field supervisor contact me, and the field supervisor was authorized to reimburse me for my costs.

I responded that it was the field supervisor who had failed to adequately supervise in the first place, giving rise to the problem, then failed to respond after I complained of the problem, and that I was unconvinced the field supervisor would be more helpful this time. He told me that the field supervisor had to respond to me within 24 to 48 hours.  Or what, I inquired.  He didn’t know, but those were the rules.  He asked me if there was anything else he could do for me, and after exchanging pleasantries, we hung up.

I received a call from a fellow named Tim soon after Natasha got channel 51 working again.  Tim was the field supervisor.  He already knew that I had called about branches cut and left on my property. He asked how I knew it was Cablevision, and I told him that the derelict cutters had the word “Optimum” emblazoned on the side of the truck.  Tim then explained to me that he needed to find out who was responsible for this unacceptable conduct, but “obviously” he would be unable to do so until after Labor Day. 

I told him I wasn’t really concerned with who did the dirty deed, but rather that I be compensated for having to clean up after them. He told me they would deal with that afterward, which I took to mean that it would come directly from the pocket of the fellow who left the branches behind.  He then asked whether there was anything else he could do for me, and I responded there was, as I had a question.

I asked him what they were doing when they felt compelled to cut the branches. Tim told me there was a problem with customers getting black screens on some of the cable channels, so they were changing over some cable, and they cut branches when they were in the way of the repairs. I wished Tim a happy Labor Day and then we hung up. 

While I wanted Cablevision to feel the poke of having to reimburse me, I really don’t want to take any money from the fellow who cut the branches.  His being told he shouldn’t do that is enough to serve my purposes. But the least they could have done is fix the problem with channel 51 and saved me the call to Natasha, even though it was a pleasant call.

Via  Autoblog comes a statistic of shocking magnitude:

According to a recent study, nearly a third of American 19-year-olds haven’t bothered to get their driver’s licenses yet. Three decades ago, it was just one in eight who skipped that right of passage, according to Michael Sivak, of the University of Michigan Transportation Research Institute, or UMTRI. Among those 20 to 24, meanwhile, only 81 percent had gotten their licenses in 2010, down from 92 percent in 1983.

Why are young Americans losing their love affair with the automobile? There are any number of explanations. There’s the economy, of course, which has even driven millions of older buyers out of the car market. Young buyers, in particular, are more likely to have to settle for higher interest – meaning costlier – subprime loans. Compounding matters, they’re facing a market with higher unemployment and lower wages, and are leaving school saddled with massive loan debt.

Of course, that’s all meaningless, anyway, for those who don’t have a license and don’t want one.

The biggest reason behind this dwindling love affair might be a series of broad societal shifts. A recent analysis of census data found that for the first time since the launch of the Model T, America’s urban population is growing faster than in the suburbs. Even Detroit, with its crumbling neighborhoods, has seen a revival in its downtown core.

Have you ever tried to take a cellphone or iPad away from a teenager? For a large percentage of Millennials, texting has become the preferred form of communication, and “Virtual contact reduces the need for actual contact,” suggests UMTRI’s Sivak. “We found that the percentage of young drivers was inversely related to the availability of the Internet.”

Not the cops. Not even the prosecutors. Sitting in the back, awaiting the judge to take the bench, I found myself next to a lawyer I had known for more than 20 years, even tried a case with years ago, but who I never really talked to. We weren’t buddies. He was the competition.

While we both served the same community, in the sense of the clientele of criminal defense lawyers coming from the same community of people charged with crimes, we were on opposite ends of the spectrum. He was the high volume guy, the one who had twenty-something “paragelegals,” assuming you can call anyone with a GED you hire a paralegal, with calendars that rivaled the court’s.  They ran from courtroom to courtroom, assuring clients their lawyer would be there as soon as possible, and asking the court officers to hold the case until the lawyer got there.

He had a “price list” for crimes.  It wasn’t exactly cheap, but was far from expensive. And it was far less than I would charge.  Far, far less.  And when contrasting prices, a great many defendants saw no reason to go high when they could go low and see what happened.  I would regularly get calls from defendants who went there first, in the hope that the case would be quickly tossed, because they were “sure” how serious the case was.  If it was serious, then it was worth the expense, but why spend it until you know for sure.

It’s not that the lawyer wasn’t good.  He was actually quite good, as I learned while trying a case with him. When he took the time and put in the effort, he was a heck of a lawyer.  It’s just that he rarely had the time. How could he, with 20 cases on the calendar every day?  If he could plead out the cases, he did. If he had to try them, he did, and took the financial hit.  But he did everything he could to make sure they didn’t go to trial. 

For the most part, his clients knew what he was doing. They could do the math, and realized that at the fees he was charging, there was only so much time he could dedicate to their case.  His papers weren’t bad, but they were “change the name” forms, with good content left in from 100 cases ago, whether relevant to the case at hand or not.  That the new cases needed new arguments couldn’t be helped.

Sitting next to me in the courtroom, he started musing about the old days.  We fought each other over the same clients, him trying to keep them and me asking to send over the file when the client realized he needed more. It used to make me nuts to see the file, what hadn’t been done in the case that I would have done, and was now gone with the wind. This was the part clients never understood, that there was one chance to do something right. If it wasn’t done, or wasn’t done well, it was gone.

He was beat. He had been in the rat race a long time, and it takes its toll.  He had enough. “Well,” I said to him, “at least you can walk away a rich man.”

All these years, I assumed he made a bundle doing volume work.  I did the math, say an average of 10 cases a day, at $500 per appearance, he was taking in $5,000 a day, $25,000 a week, $1,250,000 a year even with two week’s vacation.  He has expenses, but not that much. The high school drop-outs couldn’t cost him that much, and his office had no marble in sight.  He should have been clearing a cool mil a year, almost all cash mind you.  And these numbers were conservative, taking into account the deadbeats and problem cases.

“I don’t know where it all went, but it went,” he told me.  I didn’t press him.

It wasn’t an easy life by any means. He ran from courtroom to courtroom, sometimes courthouse to courthouse, trying hard to remember names. He would call them out in the courtroom, because he couldn’t put faces to them. He signed them up in the evenings, assuring them that he would make their problems go away and taking whatever they had in their pockets. No one walked.

Others tried to do this, but couldn’t take the pressure. One lawyer, whose flame burned brightly for a few years, burned out one day. losing his family and some of his sanity. Another crawled into a bottle the first chance he got. No, this was a tough life. But the money was supposed to make it all worthwhile.

There was no doubt in my mind that he wouldn’t go hungry in the years to come. There were probably bundles of twenty dollar bills, with a rubber band at either end, stacked high in the safe, waiting for the day they saw light again.  There was probably a very nice house in the suburbs, and kids who finished college and grad school with no debt whatsoever. He made it through the maze having fulfilled his self-imposed duty to his family of providing them with all the things the family of a successful lawyer should have.

And I suspect that there are many former defendants walking around who were very happy that they hired him, having saved their money and been satisfied with the outcome.  There are also many defendants who weren’t happy, learning the hard way that the friendly handshake on the night they retained him didn’t mean they could ever get him on the phone after that.  And found out the hard way that assurances that everything will be alright don’t always happen. 

We all make a choice as to how we approach our future as a lawyer, whether we want to run from courtroom to courtroom, file generic motions and pray we get a quick and decent plea offer or not.  Having had this chat, I was happy about the choice I made.