No really, stay cool.



It’s hot in New York. No really, it’s hot in New York.

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ..

Either the legal marketers have maxed out their scam with websites and blogs, or new ones are searching for fertile ground, not already owned by Nigerian princes, but there has been a big push of late to get Luddites to grasp the latest and greatest in social media marketing.

In the monthly webzine (yes, internet savvy folks have a cutesy name for everything) of the American Bar Association Law Practice Management Section, is this stroke of brilliance from someone named Jared Correia, a non-practicing lawyer who has dedicated his career to making sure practicing lawyers wear brightly colored hotpants.

Among the social media services, Twitter is unequivocally the best for professional development.  While LinkedIn might seem to be the more obvious choice, since it has, for quite some time, attained the put-upon status of ‘the professional’s social networking site’, Twitter features far more for the attorney seeking to develop as a professional person via the use of social networking. 

Twitter offers a far more dynamic user experience: The Twitter streams of effective users are more active.  It’s easier to communicate with other users, including in multiples, and to refer their content.

This all speaks to functionality; but, it’s also a bedrock consideration for professional development.  If you conceive of Twitter, as others have, as a gigantic networking event, you’ll be far more effective within that construct if you can easily communicate with others, especially as the guest list continues to grow. 

There is another social media metric for law firms to take notice of. Forget about your number of Twitter followers, LinkedIn connections or Facebook “likes.” The new standard in judging your social media influence is your “Klout” score. To find out what yours is, just head on over to Klout.com and enter your information from LinkedIn, Facebook, Twitter or any other major social media site and you will see your Klout score from 1-100.

Why is it important? Looking at the klout score for your firm and for your lawyers will help you appreciate that having more lawyers engage in using social media is the only way to increase your influence.

There has been a massive increase in people using Twitter to ask for recommendations of professional service providers in the last two years, with solicitors one of the most in demand, according to research conducted for Orange Business.

It claimed that “small businesses are missing a trick if they take their eyes off tweets”, with its research reporting a 663% increase in people using Twitter to ask for recommendations around common professional services.

Orange, unsurprisingly, said lawyers should use their smartphones to access Twitter on the move so that they did not miss out on what was happening, and also advised that they should be prepared to offer advice on the micro-blogging site. “Professionals need to showcase their expertise and accessibility over Twitter. It’s not about giving away free counsel but showing you know what you’re talking about and sharing information which might spread far and wide. Your words of wisdom will reach far more potential customers than your silence.”

Also, it said lawyers and others need to be quick in responding to tweets and ensure they can demonstrate their “real-world” credentials by making sure users can easily link from their Twitter profile to a website.

Last week in sunny Naples, FL, I joined Brian Tannebaum to speak to the annual meeting of the Florida Association of Criminal Defense Lawyers. The topic? Social media and online advertising. We talked a lot about blogging, Twitter, and scummy SEO tactics. But I want to expand on a theme that permeated our talk, and the discussions I had with many Florida lawyers afterward: that blogging and social media are worthless as tools for direct client acquisition.

Many lawyers seem to take it as a given that technology is changing everything about the practice of law, and fight about whether or not that is a good thing. In reality, technology isn’t changing much about how we practice law. That is, technology is changing plenty about how we do things, but not about what we actually do.

The thing is, if you can stop being distracted by shiny gadgets, the practice of law today looks a lot like it did 50 years ago. The fact that you can check your email from your car’s dashboard doesn’t mean a contract is suddenly valid without consideration.

Not being a regular reader of sport reporting, I wasn’t familiar with Rick Reilly.   Eric Mayer explained him to me:

It started with Crawford, and then  picked up steam with Melendez-Diaz and Bullcoming.  It seems impossible, but there it was: The Supreme Court of the United States held that a clause in the Bill of Rights entitling a defendant to confront the evidence against him would be honored. 

Then came Williams v. Illinois, decided yesterday by a fractured 4-1-4 decision with Justice Clarence Thomas assuring that no affirmative rationale would support the decision.  No matter, While the opinion failed miserably to perform anything remotely resembling a positive function of the least helpful branch of government, it did enough: It killed Bullcoming.

When Justice Scalia is in the minority of a confrontation clause decision, there is an absolute assurance that no good can come of it. And indeed, Justice Alito’s kinda majority (with Justice Thomas concurring in result but not rationale) returns us to the age where the court need not bother trying to wrap its ruling in rational explanation, but resorts to the old “because I said so” reasoning.

The case involved a testifying DNA expert who concluded that the DNA involves belonged to the defendant based upon an analysis by Cellmark Diagnostic Laboratory in Maryland.  No one from Cellmark testified, so the results of its analysis  simply materialized at trial and were relied upon by the expert, Sandra Lambatos, who was present.

Ms. Lambatos’s discussion of the Cellmark report was not offered to prove that what was in it was true, Justice Alito wrote. In any event, he added, the report itself was not the sort of evidence to which the confrontation clause applies because it was made “for the purpose of finding a rapist who was on the loose.”

When a call comes in to police about mass murder, it’s likely that someone will take it seriously. Unless, of course, the tipster happens to be a psychic who gets her information from the angels.  And unless the cops work for the Liberty County Sheriff.

Via Courthouse News, Joe Bankson and Gena Charlton are suing the sheriff, the psychic and a bunch of news outlets who reported about them “after a self-proclaimed psychic told the sheriff that 25 to 30 dismembered bodies were buried in a mass grave at their home.”  Needless to say, this tip didn’t pan out, much to the surprise of the psychic who calls herself “Angel.”

The sheriff’s office provided the plaintiffs’ address to the news media and repeated the false statement, and it made nationwide and worldwide headlines, according to the complaint.

Bankson and Charlton claim the sheriff’s office searched their home unreasonably and without probable cause, inviting the media along to watch the intrusive execution of the search warrant.

The couple claim the sheriff’s office was “unreasonable in relying on an uncorroborated tip from a self-proclaimed psychic source” who has proven to be “unreliable and untrustworthy.”

While it may seem utterly outrageous that the sheriff had cameras along for the ride, they just couldn’t risk the possibility that a mass grave would be found and there would be no one to record their brilliant law enforcement efforts.  Sometimes, you just need to throw caution to the wind and take a chance. And have your own friendly cameras ready to record it all for national television.

Afterward, as things didn’t quite pan out as hoped, there were butts to be covered.

Officials at the Liberty County Sheriff’s Office maintain the investigation was by the book. In a previous interview with KHOU 11 News, a spokesperson called what they did a justifiable response to a pair of phone calls from a woman who claimed there was a mass grave with children.

It’s unclear whether there’s a chapter in the book about dealing with mass graves of children or tips from psychics.  In any event, that’s quite an interesting book guiding the Liberty County Sheriff’s Department, who went to check out the tip :

Deputies went to the property and found nothing, but in a subsequent call Tuesday the tipster redirected officials and offered more details that led them to a home with blood on the porch and the foul odor of rotting flesh in the air.

Apparently, there was a perfectly reasonable explanation (by Texas standards) for this:

The blood was from an injury at the residence a few weeks earlier when an AWOL soldier tried to kill himself, and the odor was from a malfunctioning deep freeze full of pork products and maggots, officials have said.

As for Angel, explanations were in order as well.

“I was calling to have a welfare check on three live children,” said the 48-year-old woman, who only wanted to be identified by her nickname Angel. “Everything pretty much got blown out of proportion.”

Liberty County Sheriff’s deputies, the FBI, DPS officers and the media converged on the town of Hardin looking for signs of a mass grave. The information spread around the world, but Angel claims she said nothing about dozens of bodies.

“They up front asked me how I got the information, and I am a reverend. I am a prophet and I get my information from Jesus and the angels, and I told them that I had 32 angels with me and they were giving me the information and then it went from there,” she said.

Naturally, it’s the old “blame it on the 32 angels” excuse.  Of course, as a prophet, one wonders why Angel didn’t foresee the possibility of filing a false report charge.  But then, no one would come out of that trial looking good, and so no charges were ultimately filed.

There remains one question that demands an answer: What judge would sign a search warrant based upon information provided by a psychic?  I’ve requested a copy of the warrant affidavit from Bankson and Charlton’s lawyer, Andrew Sommerman, but heard nothing, which is a terrible shame given that this may be one of those all-time classic search warrants.

The good news is that there was no mass grave, meaning that 25 to 30 children had no been murdered, and, perhaps more importantly, 25 to 30 children hadn’t been murdered and nobody in Liberty County happened to notice.  One would think that if that many children had disappeared, someone would have said something.  After all, a dozen children missing could easily go unnoticed, but 30 can’t be ignored.

While television shows have bolstered the notion of psychics helping police solve crimes and find bodies, most of us realize they’re just entertainment, and don’t reflect reality.  Apparently, no one told the Liberty County Sheriffs, or the judge, or the too-happy-to-tag-along media, that people don’t actually talk to angels or get psychic tips about crimes.

In the meantime, the psychic, Angel, fears that  this is a bad thing for her in particular and crime fighting in general.

Hunkered down in her trailer in the Texas Panhandle, a grandmother who had a vision that sparked a media circus and police search for alleged mass graves in Liberty County said she is being wronged and fears for children who may never be found.

“This is bad for people who call in a tip for something,” she told the Houston Chronicle by phone Wednesday evening. “They think they have done a good deed, and it turns around on them.”

There’s a reason why they say no good deed goes unpunished. On the other hand, if someone calls in a tip because they have actual knowledge of a crime, they aren’t likely to be subject to quite the same scrutiny as your basic 32 angel prophet. 

All of which begs the basic question, is everybody in Liberty County, Texas nuts?

It goes back a little over a year now, when  Dan Hull asked me what I thought about writing an article for the ABA Journal on the subject of mentoring.  Both of us shared a concern with new lawyers, from the perspective that far too many of them were slackoisie, and far too few were being adequately mentored so that they could take their place in the profession without either disgracing it or harming clients.

We decided it would be a good idea.

Hull contacted Molly McDonough on March 13, 2011 and pitched the project.  She liked it, and carried it to Allen Pusey, publisher of the dead tree ABA Journal. He liked it too, and we were given the green light.  The idea was that it would be ready for print by the summer.

We were given a 2500 word limit and an editor, Jill Chanen, and we went to work.  With some fits and starts as we decided the scope and breadth of the piece, we nailed down an outline, and received raves about how wonderful it was, how much everyone loved it and how thrilled they were. And so, Hull and I crafted the article.

It was to be a feature, and we took it very seriously. We had a mission, to make a persuasive case to shift the trend we had both experienced away from new lawyers being left to flounder or pretend they knew what they were doing when they didn’t, and old lawyer caring only about cranking out hours or collecting the next fee.  Both Dan and I saw the looming crisis, where the emphasis on the business of law left neither time nor concern for the profession of law, the focus on client and competency. 

We proposed the New Mentoring, which rejected the facile lip-service being paid on the internet in favor of substantive effort on the part of both new and old lawyers that would produce no direct financial benefit, but would sustain the purpose for which society gave us license to hold other people’s lives in our hands. 

This was no blawg post. It wasn’t snarky or cute.  It didn’t capitalize on the flavor of the moment, and we meant it to stand as an evergreen piece, an idea that would retain its merit over time, as this was a long term issue.  Being in an age of 10 second attention spans, and issues with shelf lives of mere hours, we recognized that an idea requiring long term commitment and produced no quantifiable gains was decidedly unsexy.  But it was crucial for the perpetuation of the legal profession.  We worked hard to make the article say what we believed needed to be said.

Through dedication to our cause, we produced an article within the word limit and time frame sought by the ABA Journal.  We worked hard to do so, and we did so.  A great deal of time was put into this project, which could have been spent working on client matters and making us huge sums of money.  While we expected the usual magazine compensation for the effort, it was nothing compared to what we would have earned working on pending cases.  But we were willing to make the sacrifice because we felt the article had a message that needed to be sent, and so we sacrificed our own pecuniary interest.  We turned it over to our editor, who in turned it over to hers.

They loved it. Not just liked it, but loved it.  At least they said they loved it.

There was some additional editing along the way, questions about particular words or ideas, and one day it needed to be shorter, and another it needed to be longer. The idea was raised about adding in a sidebar with someone who was of the view that mentoring in the digital age could be done via twitter, which concerned us since the ABA Journal has a unnatural fondness for technology which tends to make it seem less stodgy and more hip, even though it’s an approach more appropriate for People Magazine. 

Dan and I were concerned that the focus would shift away from mentoring toward technology.  While tech was an element of our articles, it’s relationship was tangential at best.  Only those with a direct financial interest in promoting superficial notions like mentoring on Facebook would consider it worthy of discussion, no less a serious alternative.  They eventually came to this realization as well, from what we were told, as our weighty perspective was juxtaposed with the frothy silliness of virtual mentoring.

When the September issue of the ABA Journal came out, I looked at the cover. Our article wasn’t there. I looked inside, and it wasn’t there either.

Same with October. And November.  We made inquiries, and were told that something more pressing pushed it down the road a bit.  That can happen.

Then a call came from Jill Chanen, informing me that because of some amorphous “politics” at the ABA Journal, our article was killed. Dead and buried. Sorry, have a nice day.  It was odd that the call came from Jill, as she wasn’t involved in the decision to have us produce the article, and was merely the messenger.  No reason to kill the messenger, since this isn’t Sparta.

Dan reached out to the publisher, Allen Pusey.  No response.  He tried again, and Allen told him he was busy but would get back to him the following week. Then nothing. Dan tried again. And again nothing.  Allen must be a very busy man.  And apparently the monumental waste of our time in producing the article they loved and wanted so badly means absolutely nothing because we’re inconsequential in comparison.

Granted, our article wasn’t sexy cool.  It wasn’t controversial, nor did it deal with a hot topic, the sort of trendy thing that fascinates people for a few hours.  But it was a damn solid piece of writing, and it was meant to do something that would matter to lawyers and clients.

And because the ABA Journal, having asked us to write it, having implored us to write it, having told us how much they loved it, having us go all the way down the road to produce a feature article for their hard copy magazine, has decided to kill it, you will never read it. And I’m pissed.

Don’t blame us. Dan Hull and I wrote it for you.

When Ken at  Popehat broke the news of yet another lawyer sending yet another cease and desist letter, there wasn’t much reason to take notice.  First, Ken was on it, and he likes his role as defender against censorious asshats. Second, it happens all the time, and is usually dealt with swiftly and harshly by the ordinary dynamics of the Streisand Effect.  And third, it involved  FunnyJunk and the Oatmeal, which is largely like watching two 12-year-olds rolling in the mud.

But Matthew Inman, who does the Oatmeal, put the lawyer Charles Carreon’s letter demanding $20k on the web, with his own special touches, in a masterful response, one aspect of which was that rather than succumb to Carreon’s demand, he would raise some money for charity.

It’s not part of the job, but one of the things that comes naturally after the parenting hormones kick in is the desire to be paternal toward one’s clients.  What one sees with great frequency in criminal defense are clients who, at minimum, need a damn good talking to.  Often, they need a spanking.

They may have gotten some decent beatings in their life, but never a spanking.

Much of what walks through our door is swagger and stupidity, a toxic combination. No one ever taught them responsibility or humility.  They never learned the basic lessons of life that comprise the building blocks of a successful, happy life. Instead, they were neglected and learned on the street to indulge the devil whispering in their ear.  Many never knew their fathers.  Some knew them only too well.

In more instances than I can count, I’ve tried to play father to young men and women who sat in front of me.  I had the basic tools, a grey beard and eyes old enough to count while still strong enough to stare them down.  The lessons I tried to impart were pretty basic, as that was really all I could do given that I was just the lawyer.  Be responsible. Actions have consequences. Man up.

But I wasn’t their father.  The deal with parenting is that it’s a two way street, where there is a devotion toward your child and a devotion in return.  My children don’t listen to me because I’m right, or because I know better (an issue that’s challenged every second of every day). The ultimately listen because I’m their father. In their hearts, they know that that there is nothing I wouldn’t do for them.  I would take a bullet for them. That carries some weight.

My time with clients is brief. While cases may go one for a few years, it’s nothing like a lifetime, and it’s not a daily dose of parenting where every evening we sit down to eat and annoy them by asking what they did that day.  Even the few basics can’t be taught that quickly.

Over the years, a surprising number of clients have asked me to care about them as if they were my own.  I cringe every time someone says this to me.  It rarely works out well.  While I can be retained as a lawyer, I cannot be hired as a father.  For one thing, they need me to be their lawyer first, detached and unemotional as I do the nasty work of defending them.  For another thing, the relationship of father and child is a two way street. They seek devotion, but don’t give it.  I don’t blame them for this, but it’s a critical aspect of the relationship that, when missing, renders the effort a waste.

With my children, I may explain things in a way that’s intended to provide template to guide them in their own life and choices, a way for them to learn how to live their lives going forward as well as make the decision before them at the moment.  My children tolerate my explanations until they get bored and start drifting off.  When their eyes glaze over and their jaw goes slack, I eventually come to the realization that my explanation has run its course. That’s when I tell them to just do it my way or else. Sometimes that works because they need something from me and realize that they won’t get it if they don’t succumb to the strength of my logic or my willingness to finance their choice.

It doesn’t work with clients, however.  And if it did, I wouldn’t use it anyway.  They need to own their choices, which is part of the reason they find themselves in my office in the first place.

They may need a father desperately, and I am happy to offer some fatherly advice.  But I can never do the job, and the truth is that they really don’t want me to.

It’s sad to realize that a surprising number of criminal defendants might have avoided some of their worse choices if they had better (or any) guidance growing up.  There are some bad dudes, but most are pretty normal people, with both better and worse angels within them.  To outsiders, they are one dimensional, all good or bad based on one thing they’ve done, the crime with which they’re charged.  Even a young man who has engaged in a life of crime has aspects of his nature that reflect his humanity.  He may sell drugs to kids, but will save a kitten from a tree. 

If their father had done his job, they might have gone on to college and become an engineer.  Or maybe just gotten a solid job with dreams of a family of their own one day, where they would sit down for dinner every night with their own kids so they could annoy them with questions like I annoy mine.  But for whatever reason, often because daddy was in prison, they had no one to guide them. They never knew what it was like to have a father who was devoted to them.  Their father might take a bullet, but not for them.

To the fathers who did their job, happy fathers day.  To those men and women who need a father, I wish I could have done more for you, but I’m just your lawyer.

When he isn’t offering his services as an expert witness that  false confessions are a fraud and the earth sits on the back of a turtle, Paul Cassell’s holds himself out as th patron saint of victims.  For reasons unknown, this was a sufficient reason for  Slate to give Cassell’s the opportunity to write about his dream of a Victims Rights constitutional amendment