While we tend to focus on law and lawyers here, let’s not forget that we aren’t the only profession facing “issues,” both in practice and on the interwebz.  It seems physicians have theirs as well.  From Medpage Today :

Rather our subject is doctor ‘bots on Twitter — automated programs masquerading as human physicians dispensing medical information.

We follow a lot of physicians and other healthcare professionals on Twitter and engage in dialogues and organized group discussions (“chats”) with many of them. Some time ago we noticed a few Twitter Docs who never seemed to take part in commenting, retweeting, discussions or other types of “social networking” activities, which is what Twitter is all about.

Rather, these physicians just pump out medical factoids on a wide variety of health topics and conditions, complete with links to more information. Two of these Twitter Docs are @IntegrateMD and @NowHealthMD, and we set out to communicate with and engage them. It didn’t take us long to realize that @IntegrateMD and @NowHealthMD are the same person, Dr. Nicole Evans, who describes herself as “a resident physician with a passion for Integrative Medicine” who loves “sharing info on health, disease and the art of medicine.”

Anyone who uses the word “passion” (or any of its permutations) in their twitter, blog or website is trying to scam you.  Whether law, medicine or women’s shoes, it’s the word of the day that’s designed to conceal an absence of skill, education or competence behind a word that smells as if it should be meaningful yet isn’t.  Passion can’t be tested, quantified, proven or challenged, so its use conveys an impression of worth while concealing a lie.  If someone describes themselves as “passionate,” stay far away, unless you happen to be one of those criminal defense lawyers who isn’t bothers by cozying up to liars, in which case, what are you doing here?

Something else we noticed about Dr. Evans is that nearly all of her links pointed to one place, a web site called Helium.com where writers contribute articles and share advertising revenues with the site’s owners. Helium contains 360 articles by “Nicole Evans, M.D.”

Dr. Evans’ articles are rather short and the sample we looked at contained no citations, footnotes or other authoritative sources of her information. The articles contain a fairly large number of hyperlinks that appear to be automatically generated. Many of the links point back to other Helium articles while others point to an online shopping catalog called smarter.com.

Does this cause any harm?

That depends on the quality and accuracy of the information published and whether or not it’s OK to subject human subjects to an ongoing Turing Test. Without anyone to verify and fact-check these articles, these automated “RoboDocs” are feeding the public misleading and potentially out-of-date or even erroneous information at a rate faster than any one human could possibly keep up with.

Law firms used to dictate the terms upon which legal services were performed — work assignment, work flow, scheduling, timeliness, format, delivery, billing, pricing, and many others — because buyers had no other options. Those options have now emerged, powered by technology and driven forward by market demand.

• They promise legal documents not just faster and cheaper but also, incredibly, better, in terms of quality and reliability.
  
• They promise greater efficiency and transparency in the previously laborious RFP-driven process of choosing and pricing law firms.
  
• They promise real-time integration of world-class legal knowledge into the legal work production process.
  
• They promise alignment of a legal task’s value with its performer’s skills, qualification and location.
  
• And at ILTA, they demonstrated delivery on all these promises and more.

But the emergence of these options isn’t the real story. The real story is that firms are buying these new products and services, not selling them. They’re taking marching orders about their use, not issuing them. They’re accepting the new realities of the marketplace, not inventing them. Law firms are now drifting to the periphery of the marketplace, trading places with technology-driven outsiders whose own importance increases daily. Law firms, whether they realize it or not, are settling into a new role: sources of valued specialists called upon to perform certain tasks within a larger legal system that they did not create and that they do not control.

This is a fantasy, the sort of nonsensical crap spread among the technorati wannabes who argue that any kid fresh out of law school can be as cool as the most experienced lawyer if he only gets an iPad. 

Technology may well bring useful tools to our practice, but they do not dictate our practice.  The vultures who use technology in an effort to infiltrate the practice of law and medicine, to circumvent the judgment and advice that distinguishes what real professionals do versus the bot that spits out factoids, want to convince you that they are the future, that they own the future, that they own us.  This is no more law than it is medicine.

Do not believe that the future compels us to surrender to technology.  We will only become the serfs of the robot overlords if we buy into this crap.  It’s a lie.  Do not surrender.

H/T Venkat “I ain’t nobody’s slave” Balasubrumani

Unless the victim knew his perp, descriptions of the alleged criminals are invariably awful.  They tend to cover such wide swathes of the population as to be worthless, except for the “unique” identifiers that people tend to remember:

He wore a Yankees baseball hat.

He had a red tie.

He wore a green hoodie that said “my mother went to prison and all I got was this lousy green hoodie.”

Defendant was charged with two robberies that occurred on the same morning. The witnesses to the robberies described the driver of the getaway car, respectively, as “a huge, big, fat, black guy,” “a real big, real huge black guy,” and “very heavy-set [and] large.”

A review of the lineup photograph reveals that defendant, who weighed 400 pounds, was the only participant who fits these descriptions. Although the fillers were large men, there was a very noticeable weight difference between defendant and the fillers. While the lineup participants were seated, and this can sometimes satisfactorily minimize differences in weight, it is clear from the photo that there was a marked difference between defendant and the fillers.

From the story headline, it appears the difference in weight ranged from 115 to 190 pounds.  That’s another whole person, and it demonstrates the point about how people are identified, by the feature that stands out to the quick observer.  When you see a 400 pound guy, that’s all she wrote.

Notably, the decision doesn’t begin to rip to shreds the worthlessness of this identification, the flagrant failure to craft a line-up that stands even a close chance of accuracy.  Indeed, the opinion is almost apologetic for not affirming the conviction, but this one went just a bit too far.  The court, throwing judicial humility to the wind, goes on to say:

We do not mean to suggest that the police are obligated to find grossly overweight fillers when dealing with the situation presented here, and we recognize the practical difficulties that would be involved in doing so. Instead, this situation would call for the use of some kind of covering to conceal the weight difference.

Of the multitude of concerns that a gang of five judges might have with this identification procedure, and knowing full well that bad IDs are the leading cause of wrongful convictions, and further knowing the bad identification procedures are the leading cause of bad identifications, they still feel constrained to “teach” the cops how to circumvent a negative ruling while accomplishing nothing in the accuracy of the identification.  Their foremost enunciated concern is the practical difficulties for police in providing proper fillers.  Is that really a greater concern than convicting the innocent?

Because the head of a 400 pounder isn’t proportionately larger than the head of a person half his weight?  Because the drape of the white sheet over the body of the 400 pounder doesn’t clearly show that he’s huge?

While it’s somewhat admirable that the panel reversed, showing that there is a line that even the Appellate Division won’t allow to be crossed, the inherent unreliability of standard line-ups is still of little concern, and the overarching concern that law enforcement not be put to too much difficulty in assuring that their perp gets ID’d remains enormously troubling.  Nowhere does the decision urge that the police employ any of the methods that might come close to assuring an actual accurate identification.

One final noteworthy aspect of this decision is that the defendant was represented on appeal by the Cardozo Law School Criminal Appeals Clinic.  Granted, the law involved is fairly clear, and the argument on appeal centers only on whether this line-up exceeded the “unduly suggestive” threshold.  Still, that this reversal comes from a law school clinic is yet another indication of the efforts Cardozo puts in to preparing their students for the real practice of law, like their ITAP program, and which other law schools really need to recognize. 

As for law firms looking to hire new lawyers equipped to get to work as soon as possible, it’s programs and directions like these which offer a far more effective new hire than law review or top tier school credentials.  If you want your new lawyers to be lawyers, this is what you should be looking for.

H/T Eric Turkewitz, on the cutting edge of huge.

From Tempe criminal defense lawyer Matt Brown, not long enough in the tooth as yet to see new lawyers from the distance where I sit, there remains a nagging problem:

I often think about a comment my mom made made a year or two ago. She was talking about retirement and mentioned how it would be interesting to see how it feels, as the men and women of her generation identify themselves by their work. The job defines them, apparently. I’ve thought about that statement often. I can’t say if she’s right, but I can say that a negative implication of her statement is definitely true. The men and women of my generation generally do not identify themselves by what they do for a living.

I share Matt’s mother’s perspective, where we are what we do.  Not completely, and not to the exclusion of all else, but the first thing out of our mouths when someone asks who we are would invariably be our job. 

I frequently see blog posts about job-hunting for law students and new lawyers. Getting a job is obviously a big concern for a lot of people, and there are plenty of others willing to provide advice. Advisors suggest things like hanging around with practicing lawyers and broadening the search to include non-lawyer jobs. They say to embrace social media and to think outside the box. Those are the tools to get a job, the explicit goal of people in my generation. Rarely do people mention being qualified for the desired job as an important part of the equation. The advice all seems geared toward staying just as you are while altering superficial things that make you more appealing to employers.

Superficial is an important description, as it’s used very rarely yet applies with great frequency.  Few see their efforts as superficial, putting a shiny gloss on an otherwise empty vessel, because they’ve been told that the exterior sheen is all there is.  Yet, it seems impossible to believe that they don’t feel in their hearts that they are empty inside.

My generation wants work, but they don’t want to define themselves by their work. A job is a way to live in a nice house, drive a late model car, and have enough stability to relax on evenings and weekends and during several weeks of vacation each year. A job will provide an office with a window and a big desk under which they can grab a quick nap after taking a long lunch break at a trendy restaurant with their work friends. Jobs are means to an end. They want a job not because it’s the job they want to do or even that they can do exceptionally well, but because it will help them do the non-job-related things that make them happy. They don’t care if their work time is well spent as long as it pays the bills.

This isn’t merely “working for the weekend,” but caring about nothing other than oneself, and using the job as a conduit for the flow of money to fund a real life while giving as little in return as absolutely necessary.  And not feeling any remorse about it.

As the complaint of the Slackoisie over the past few years has been the dearth of jobs, or opportunity, available to those saddled with the debt they were told was the purchase price of a life of fine food and fancy cars, one might naturally suspect that they would come to realize that shiny is not enough.  The days of merely showing up, seeing what they could get away with, are over.

Some have sought an alternative route, hooking into the next shiny, empty faux reality, where self-deception combined with lying to others seemed like a good way to turn a worthless career into a money-maker, enough to fund the real goal in life.  Even the smarter ones, the ones who ought to know better, have reduced themselves to cheerleading anything shiny, no matter how vapid. 

The secret here is that the proponents, having no particular care that they are empty and devoid of substance, that they are merely superficial shells that provide no value and contribute no substance, are more than happy to create the appearance of self-worth in order to make a buck.  They don’t mind at all that they offer nothing, since the only purpose to all of this is to suck some money from an unsuspecting fool so that they can enjoy the fine life they deserve.

Every time someone who’s done nothing to build a foundation of knowledge and skill in a given area of law complains about how employers in that area want someone with three to five years of experience, I worry about the future.

It may be worse than Matt suspects, as three to five years experience doing little more than pretending to be a lawyer isn’t experience at all.  It’s just wasting time in an office waiting for the chance to get to happy hour.  Killing time isn’t experience.

Yet law students and young lawyers continue to complain about the death of their great expectations.  They have no jobs, and their career as social media gurus brings internet adoration but barely enough money to fund a mocha frappucino, no less a Ferrari.  They are certain they are brilliant, as every adult they met growing up told them so, yet no one seems to appreciate that they are smarter than every person they survey.  How could things go so wrong? 

Here they are, starving.

And yet, as Matt Brown sees, they aren’t hungry enough to do anything real about it.

*The phrase comes from a column in the South African  City Press by Dion Chang, who liberally enjoyed my work, and so I return the favor.

Best efforts of the defense aside, U.S. District Judge Reggie B. Walton has  refused to dismiss the case against Roger Clemens. Not because the prosecutions use of prohibited evidence before the jury was okay with him.  Not because it was an accident. Indeed,

Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence.

It doesn’t get much worse for the prosecution.  Or perhaps better stated, it doesn’t really matter, aside from having to endure a few harsh words.

“While I am very troubled by what occurred and it was something that should not have taken place,” Walton said, “I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution.”

Clearly, the law wasn’t going to  make it easy for Walton to rule for Clemens, with the rule requiring that the prosecution’s conduct intending to goad the defense into moving for a mistrial.  But Walton’s justification for denying double jeopardy is particularly troubling :

Walton said his review of case law found no defendant who has been able to meet that requirement.

Well yeah, it’s a hard bar to meet.  Very hard. Too hard, most would agree. And yet, the fact that no defendant has satisfied the requirement creates the very problem Walton faced.  Unless one judge has the fortitude to rule in favor of the defense, there will never be a case where the defendant meets the requirement.  Reggie Walton could have been that judge.  Reggie Walton blinked. Ducked and covered. The prosecution did its worst and the judge caved.

There is a question of whether the intent to goard the defense into moving for a mistrial under Oregon v. Kennedy, 456 US 667 (1982) means that the court had to find it to be their sole, exclusive purpose, in that they actively desired a mistrial, or whether it means that the prosecution’s intention was to introduce precluded evidence to the jury, knowing full well that the options to the defense and the court were limited to an instruction to disregard the evidence or a mistrial.

Instructions to disregard evidence are a legal fiction.  The bell once rung cannot be unrung. The jury heard and saw the evidence, and there’s no way to get it out of their heads.  Both sides know this, and the prosecution, when it intentionally used prohibited evidence, placed the court and defense in an impossible situation.  A limiting instruction was a joke, but the only other option was a mistrial, forcing the defendant to give up his sworn jury and his trial as it transpired to that point. 

Did the prosecution desire a mistrial per se?  Perhaps not, but it certainly understood that it forced the option by using bared evidence.  When it comes to proof of intent, the law presumes a person to intend the natural consequences of his acts.  This applies to the prosecutor as well as anyone else, and the natural consequences of his conduct was to leave the defense with the choice of a worthless instruction or a mistrial.  This is no choice at all.

One of the great joys of being a federal judge is that you get to be one for as long as you like, provided you don’t do anything particularly nasty (in the illegal sense of the word).  They can’t take your robe away for having guts, or even making a wrong decision.  They certainly can’t take you off the bench because you’ve decided to be the first judge to rule in favor of a defendant since the Supremes issued a ruling that raised the bar for dismissal above the heads of most defendants.

This was the case.  This was the one time, the first time, maybe the only time, that the bar of Oregon v. Kennedy could have been met.  Maybe not a perfect fit, and maybe subject to some dispute, but similarly not so much of a stretch that it could not have been fully justifiable.  Reggie Walton could have done it. Reggie Walton chose not to do it.

And so the prosecution, intentionally showing prohibited evidence to the jury, gets a stern tongue-lashing for it’s intentional violation of a court order, and a second try.  Never do it again?  Or what, Judge?  What are you going to do about it next time?  Give them a double stern warning?

As judges love to say, high profile cases give them a bully pulpit to teach the country a lesson about right and wrong, good and evil.  The lesson here is that the government can ignore the ruling of a court, intentionally violate it in the process of impugning a defendant, and they will suffer nothing, not a thing, for their conduct.  Great message, Judge Walton.

Whether there will be another case that presents a viable scenario to meet the absurdly high bar of Oregon v. Kennedy is hard to say, but this case had the meat to do so and Judge Walton passed because no one had ever done it before.  Judge Walton will be remember as the judge who was too afraid to be the first.

While it’s rarely mentioned in the lawbooks, underneath the harsh talk of law and punishment is an expectation that prosecutors, in whose hands monumental power resides, will exercise sound discretion.  That means, of course, that they would know sound discretion if it bit them in the butt.

At Popehat, former federal prosecutor Ken writes about the good times as a kid playing with a loaded gun:

So when I got them a search warrant for the ranch of one of the lead targets of the investigation, they were thrilled with me. “Ken,” they say, “we’ve arranged air support for this operation. So we want to have you picked up on top of one of the buildings downtown in one of the Sheriff’s helicopters, give you a raid jacket, and have you come along on the search to run a command center on the ground and trouble-shoot any legal issues with the search.”

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They’ll probably give me a gun. You know, in case any shit goes down.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. “Ken,” he told me, “if your reaction to a proposal is “HOLY SHIT, THAT SOUNDS LIKE FUN,” then as a government lawyer and member of law enforcement, you almost certainly shouldn’t be doing it.”

It’s a very good rule, but what it reminds is that not every young prosecutor has the good judgment to ask for a wiser view.  Then again, not every prosecutor who asks will get a wiser view.  Worse still, the need for a wiser view, the sound discretion we expect every prosecutor to possess, doesn’t arise with every decision a young prosecutor makes.  There are many decisions to be made, in many cases, all the time, and they can’t run to the boss every 12 second.  They are expected to make their own decisions. That’s why they’re paid the big bucks.

So what decisions affecting the lives of others would you like to put into the hands of your typical 26 year old?  Would you have them decide whether the father of some sweet children will be there to feed them?  What about the decision of how to make decisions in running a major multinational corporation?  Certainly, most 26 year olds who have never held a non-law job would know better than CEOs how corporate decisions should be made, right?

Ken’s story reminds us of how fragile this system really is, despite the bluster of righteousness that covers up all the ugly warts.  It depends on so many factors all working properly, including the exercise of sound discretion by prosecutors who get giddy at the prospect of playing Elliot Ness.  It’s not sufficient to say that a chain is only as strong as its weakest link, because so many of the links are weak, some barely exist at all. 

Historically, the tempering force to the worldview of youthful prosecutors was the judges, who were expected to use their experience and maturity to guide their executive branch cousins back toward the path of lenity and reasonableness.  That hasn’t always worked well, however, as federal judges were almost exclusively drawn from the ranks of prosecutor’s offices and Biglaw towers, where there was little concern for the way children wielded their weapons.

This was exacerbated by the shifting of power away from judges into the hands of those very same baby prosecutors, whose charging authority coupled with mandatory minimum sentences, and for a time when the sentencing guidelines turned federal judges into junior accountants, made them near omnipotent.  Between the agents they adored, and their belief (or at least acquiescence) that whoever a g-man said was a criminal was, without question, a criminal, and their Ivy League sense of propriety, they could do no wrong.  Even as they drank themselves into oblivion after work, or smoked a bit of reefer with their officemates while pretending it was different than the black kid they sentenced before lunch that day.

If it was just old guys like me who told stories about children with guns being left in charge of our legal system, it could be easily dismissed as the rantings of the other side, sour grapes, maybe even a conspiracy theory in play.  But when former federal prosecutors remind us that they were children once, and given the power to destroy lives, the point is far better made.

Ken was fortunate to serve under a United States Attorneys who both understood something about the job and something about youth.  Not every assistant is so fortunate.  Not every defendant is so fortunate either.

The days when a father gave his offspring his first penknife to carry as a tool that will serve her well in life in so many ways are gone.  Today, the carried penknife would be the surest route to the penitentiary, for no other reason than its mere possession as a terrorist threat.  Were we all potential terrorists, but didn’t know it?  It doesn’t matter. That’s the rule now.

But the Garden State, in knee-jerk and premature reaction to the suicide of Tyler Clementi, passed a law. What use is a tragic death without a new law?  From the New York Times :

The law, known as the Anti-Bullying Bill of Rights, is considered the toughest legislation against bullying in the nation. Propelled by public outcry over the suicide of a Rutgers University freshman, Tyler Clementi, nearly a year ago, it demands that all public schools adopt comprehensive antibullying policies (there are 18 pages of “required components”), increase staff training and adhere to tight deadlines for reporting episodes.

Each school must designate an antibullying specialist to investigate complaints; each district must, in turn, have an antibullying coordinator; and the State Education Department will evaluate every effort, posting grades on its Web site. Superintendents said that educators who failed to comply could lose their licenses.

Schools are now requires to investigate allegations of bullying, even anonymous claims coming through the police-operated “crimestoppers” phone lines.  Not surprisingly, the definition, beyond the obvious, is broad:

“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school sponsored function, on a school bus, or off school grounds as provided for in section 16 of P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students; or

c. creates a hostile educational environment for the student by interfering with a student’s education

In other words, anything that hurts anyone else’s feelings. This isn’t about the lunchline bully any more, but about the new world order where no mean words are ever uttered (or typed, as the case may be).

Caveat: For those who will respond in outrage that I just don’t get it, that they/they’re child has suffered horribly at the hands of bullies who destroyed their lives with invectives and lies, stop.  There is bullying, and bullying is bad.  Not every mean word is horrible bullying, and not every child who utters a mean word is a criminal who belongs on the bullying registry and should be given life in prison.

New Jersey has managed to find a way to criminalize every child.  Admit it or not, kids say mean things sometimes. They do it out of anger and insecurity; they do it because they’re children.  We did it. Our children did it. The teacher’s children did it. Tyler Clementi did it. We all do it.

But this law goes so far down the road that even an anonymous allegation will give rise to the demand for an investigation, at the risk of the teacher’s license and the district’s reputation.  You can bet your bottom dollar that no teacher is putting their career on the line for your li’l darling.  This has the potential to be rife for abuse, not to mention the loss of personal and class time spent in teaching children to “respect” each other and celebrate their differences (upon threat of imprisonment).

Don’t ask me to define what should constitute actionable bullying as opposed to normal child behavior, or bad behavior that was addressed on the school level by attentive and pro-active educators who exercised reasonable discretion in keeping their charges safe.  Granted, with the introduction of the internet into the mix, dealing with the school yard tough isn’t sufficient.  But distinguishing between conduct that presents a serious threat and conduct that every child, at one point or another, engages in defies legal definition.

What is clear is that defining crime by the way it makes the “victim” feel is a looming disaster.  By making “hurt feelings” the dividing line between acceptable and criminal behavior, we turn every child into a victim and every child into a perpetrator.  Sure, no parent believes her baby could do such a thing, but the kid not only can, but invariably will, do something that some other kid will feel is hurtful.  Just as it happens with adults.

This law, which is the toughest in the nation and may well serve as the model for “save the children” laws elsewhere (since no one wants to have a worse bullying problem than Jersey, of all places), may present one of the worst threats to children ever.  As it is applied, as schools are mandated to investigate and “prosecute” bully after bully, as anonymous “tips” are use to get, and get back at, any child who didn’t invite someone to their birthday party or picked them last in gym, we may end up with a state where every child is on the bullying registry.  Or in juvenile hall.  Or in jail. At least in trouble. How’s that going to look on their college application?

This is not a defense of conduct that physically harms children.  Nor is this a defense of harassment that crosses the line of hurt feelings to real harm, whatever that means.  This is a call to stop the headlong rush to make every child a criminal in a world where no one’s feelings are every hurt.  This is a call to remember the old adage, “sticks and stones can break your bones but words can never harm you.”  We need to toughen up to mean words.  We need to get over hurt feelings. We need to avoid the creation of a society where every child is a criminal.

This is a defense of children.  All of them. They’re all bullies at one time or another. And they’re all victims. But they are not all criminals.

The slide from “Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law” into the attack on Paul Campos’ was nearly seamless, not because it was smooth, but because segues are for kids.  Dave Hoffman at  Concurring Opinions writes:

Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility –  aporia  – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.

Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).

As an example of the how Campos’ revelations have been seized by the Philistines, Hoffman goes on (with my added paragraph breaks to make readable):

This post was catnip for many bloggers and commentators.  Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know.   It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. 

Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices.  Many have sought positions as law professors, but haven’t obtained tenure-track jobs.  Others, like Scott, appear to be happy in practice.  For these machoblawgers, law professors’ language in response to the “crisis in legal education”  exemplifies the problem with law schools:  it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).  

Note how Campos and Greenfield have come to the identical criticism, though from quite different premises.  Law professors are eggheads, protected from brutish reality by their high walls.  If only “they” understood how the world really worked.  If only they confronted it with more forceful, manly, speech.

Machoblawgers?  There’s a nice ring to it.  Yet Dave contends that we, the Machoblawgers, may come off tough and manly, but wholly unpersuasive.  Persuasiveness, as asserted in Harvard Law Review, comes from the delicate, nuanced language of the effetes (his word, not mine, but I like it). 

Putting aside the resort to logical fallacies ranging from the weak ad hominems to the false dichotomy, and ignoring the blatant confirmation bias, Hoffman delivers the coup de grace:

Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary).  But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.”  Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk.  So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation.  The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?

We are not merely anti-intellectuals for our blunt and strong arguments, but Hoffman argues that we are ineffective.  To be a “better lawyer,” we should sound more like law professors. 

Missing from the analysis is a basic understanding of communication, that it consists not merely of sending but of receiving as well.  What we say is only as valuable as what others hear.  He would be absolutely correct in his assessment of persuasiveness if we were playing to the Academy, where the strain to mix in ten dollar words and such depth of nuance as to make every utterances indecipherable is what distinguishes the poseurs from the pretentious.  But we don’t live in that world.

There’s a reason why few outside the Academy read the “intellectual” lawprof blogs. No, it’s not just because they tend to be tedious and boring. It’s that they’re too difficult to understand.  Rather than say things like “I agree with this and disagree with that,” they can go on for paragraphs with such clue as “this is ‘notable,” but that is”curious.” Scholars write that way. The rest of us don’t.  And they wonder why law reviews have never gained widespread popularity.

Even here, where I use language that Dave considers brutish and vulgar, overly strong in making my point and lacking in the humility (meaning acknowledgement of the legitimacy of opposing arguments or points of view), a significant percentage of readers think I’m too subtle and nuanced, and feel the need to reduce my point to a far more simplistic and gross level.  One thing that lawyers learn in the real world is that we speak to a wide spectrum of folks, and it’s very difficult, if not impossible, to express things in a way that will work for everyone.

Communication. Making our point in a way that the listening/reader will understand and appreciate it, is something that comes not from argument, but experience.  We start learning at birth and development this experience every day of our lives.  We talk to others, from society’s lowest to its most powerful, and adapt our communication to suit our purpose.  As lawyers, we adapt to our clients, our judges, our juries.  Not too many juries consist exclusively of lawprofs.  There is the occasional effete juror, but since neither side plays to their sensibility, they can think we’re all brutes.

No one is persuasive talking a different language from their listeners.  While I’ve been critical of lawprofs’ refusal to lay down the big words and hiding behind the pedagogical jargon, if it makes them feel less anti-intellectual when chatting among themselves, that’s fine.  Many insular groups feel better about themselves by using their own secret lingo, which creates a sense that they’re special. 

When advocates argue a point, they do so for the purpose of prevailing in their position.  We argue to a trial judge differently than an mid-level appellate bench.  And often differently to a top level judge.  We often know who we are arguing to, where they came from and the nature of argument they find persuasive.  We know that some are biased against us from the outset, and we try to address that bias.  We research our audience to try to find a way to squeeze our arguments into their mindset.  We often knew them when they were younger, advocates just like us, and are aware of their intellectual proclivities.  Or lack thereof.  What they aren’t, and weren’t, were lawprofs, who used words like “normative.”  We know this.

As for blawgs, where Hoffman tries to apply the lessons from the Supreme Court and law review editorships, we aren’t writing to persuade the effete or bore the reader to absolute death by belaboring every point.  For the most part, we already know the counter-arguments, and they don’t have to be spelled out “in fairness.”  We are writing for our fellow groundlings, and sometimes trying to be informative and others times explanatory.  Sometimes, small shifts in understanding among those inclined to agree serve this purpose, though our own nuance is used differently than would scholars, who can’t see it because they lack the experienced gained in the trenches.

It’s not that I don’t appreciate the sometimes interesting ideas raised by lawprofs who are doing much of the heavy-lifting when it comes to new ideas about the law.  Every once in a while they come up with something truly insightful and novel, and I suffer the naive and leaden posts to find those rare nuggets.  It’s just that I wish they would use real words and express clear thoughts so it wouldn’t be so brutally difficult to read their posts to figure out whether they have anything worthwhile to say.  I can live with being a brute to their effete, if only they would engage in some occasional “intellectual” noblesse oblige for the benefit of the manly.

Some have noticed a dearth of new posts of late.  Unfortunately, the flow has ebbed at  Simple Justice World Headquarters following Hurricane Irene.  While no damages was suffered, aside from a few trees down, including a huge old Locust over the chicken coop (which manages to miss the coop entirely), everything is fine.  Even the birdhouse remained unscathed.

However, the same cannot be said for the magical forces that make modern life hum.  Without power, telephone and internet, it’s quiet around the place.  Given my work schedule, up at dawn and asleep at sunset, there lack of light isn’t really a big problem.  I subscribe to Joseph Lucas’ admonition, “a gentlemen doesn’t motor after dark.” 

It took a few days before there was any electricity to be had in the surrounding environs.  The Starbucks were dead.  The libraries shuttered. Even the cell service is dead, as they aren’t getting any more power than anyone else.  Yes, that means your iPad won’t save you, though some hipsters walk around and pretend that they’re still getting service to justify the debt.

I remember the old days, before the internet gods controlled our lives. I’ve returned to those quiet, pastoral ways.  It’s nice, like living on the frontier.  The absence of hot water adds to the allure. 

Having found a working connection and outlet, it only seemed right to let anyone who cares know that I’m alive and well.  Actually, better than well. Well rested.  This won’t last forever so, I plan to enjoy it as long as I can.  Having take a quick look at how much has happened in the past few day, I’m inclined to delete all non-client emails and wipe my RSS feeder clean.  It’s a bit overwhelming.

Hope everyone else is safe and well, and that others caught in the power company’s clutches survive.  I’ve had a ton of posts I wanted to write, and perhaps they will still be relevant by the time I get back.  But I’m sure that you’ve found plenty of other stuff to keep you busy in the blawgosphere and are doing just fine without me.

So I’ll be back soon enough, perhaps even tomorrow.  LIPA promises, but they are not exactly the most reliable bunch when it comes to doing stuff relating to electricity.   They are excellent at billing, however.  Then, you can go back to whining that I post too often and am such a big meanie. 

And the  KitchenAid refrigerator still isn’t keeping things cold.  Go figure.

When  Orin Kerr posted about a survey of George Washington Law School alumni, noting the elective course that proved most useful, the winner was astounding:

1. Evidence — 156 respondents (27%)
2. Administrative Law — 120 respondents (21%)
3. Corporations — 105 respondents (18%)

Evidence?  Was it possible that a person graduate law school and not take a course in evidence?

This was definitely a good time to pull out the “shocked and appalled” cliche.  What became of the core curriculum of law school that included the foundational subjects, torts, real property, contracts, criminal, constitutional, civil procedure?  And yes, evidence?

Nor is this some nightmarish nouveau experiment at GW, as I learned that quite a few law schools no longer require every student to take evidence.  How, I wondered, can any lawyer function without a working knowledge of relevance and materiality, hearsay, admissibility?

No matter what area of law one practices, it all eventually funnels into litigation when a dispute arises.  After all, what’s a written contract but a writing designed to spell out the terms of an agreement so that the respective rights and obligations of the parties can be determined by a court if there is a subsequent breach.  Otherwise, a handshake would be all we ever need to make a deal.  They are constructed with the appreciation of how one would prove their position in litigation based on, wait for it, evidence!

I was so disgusted at the notion that evidence was an elective that I twitted about it.  A response came that led me to understand the workings of a young lawyer’s mind.

This may not seem like much, but it’s the closest means available to get into the head of a law student.  And I wish I hadn’t.  The response, which apparently was not only obvious to its author, but so fundamentally sensible that it requires none of the usual explanatory details that young lawyer feel compelled to tell old guys because we’re so feeble-minded that we can’t grasp their lightning fast intelligence.

Is this really the limited understanding that new lawyers have of their profession?  Can they possible think so small and grasp so little?

The teaching of evidence in law school is not in anticipation of someone being a litigator.  Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that’s not where it ends.  Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law.  Yes, M&A.  Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence.  Why? Because every aspect of law entails a potential of dispute leading to litigation.  Any lawyer who doesn’t comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer.  If you don’t get them, you can’t think. You can’t reason. You can’t understand things the way a lawyer must.

But on a more practical level, the law student picks his elective courses in law school based upon his desire to practice a particular area of law when he grows up. This assumes his choices aren’t based on what courses are given in the morning, or don’t meet on Fridays. Let’s think the best of law students.  Let’s play out a scenario:

Law Student: I want to be an M&A lawyer, ’cause that’s where the big bucks are. I never plan to see the inside of deposition room where those nasty litigators are, and I will never, ever, walk into a courtroom.  So there’s no reason to take evidence.

Law student does well, top grades and law review, and graduates in 2009.  His diploma says Juris Doctor, with no mention of M&A. He passes the bar and his license says Attorney and Counselor at Law.  He sits in his parents’ basement waiting for that letter congratulating him on making $160,000 a year, and waits. And waits.

A year later, he’s run out of Cheetos and has mastered Mortal Kombat. His mother tells him he can’t sit there forever and must do something, so he goes to Solo Practice University where he’s taught how to market himself as a corporate litigation expert by fudging a website and claiming to be experienced, aggressive and caring even though the totality of his experience was sitting in the basement reviewing documents during a summer internship.

Things don’t always work out the way law students anticipate.  When they don’t, the law student, now lawyer, who “specialized” in school to the exclusion of core subjects lacks the core competency to be a lawyer, to engage in any aspect of law other than the one they desired as a law student.  Three years of working toward being an M&A lawyer, but they aren’t competent to be a lawyer. It’s a disaster, for them as well as anyone who might make the unfortunate choice of retaining or hiring them. They lack basic lawyering skills.

Tweak the scenario a bit, where the student finds that M&A is terminally boring, but IP law is thrilling and hot.  But he doesn’t know evidence, and is incompetent to represent anyone.  Tweak it again, where the student becomes the M&A lawyer of his dreams, but a pal says to him, “say, you’re a lawyer, I have this situation . . . ” and the lawyer can’t provide a basic intelligent response, of the sort that any first year lawyer should be able to provide, because he never took evidence.

Is it conceivable that one might manage to muddle through an entire legal career without ever needing to know evidence?  I don’t believe so, since it’s part of the ability to think like a lawyer, but it’s possible.  Compare the likelihood, however, with the likelihood that he will need a basic working knowledge of evidence throughout his career, to practice his profession, to be capable of spreading out within his profession, to not be so removed from the basic knowledge of his profession that he can’t competently answer something as simple as a cocktail party question.

Dean, how did you let this happen that evidence is not part of your mandatory curriculum? What are you unleashing on society?  No person should ever graduate law school without having taken evidence. No one.

In my effort to restrain the number of posts on law school issues, I combine two otherwise largely unrelated posts because I’ve come up with a somewhat cute title that makes them seem almost connected. 

At Inside the Law School Scam, Paul Campos channels Orwell by addressing the delicate nature of intellectual discourse.

One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds. 

Law in general and law school in particular is already too full of fake politeness, fear-induced groveling, craven appeasement of dubious authority figures, unappetizing obsessions with hierarchical status, and other forms of soul-crushing inauthenticity.  Like minor aristocrats surrounded by court flatterers, we’ve lost sight of the deep anger — and is it not a just anger? — hidden behind the faces of those who, for the moment, feel they must still curry our favor.

Randazza was one of the original participants in the discussion about Danielle Citron’s Cyber Civil Rights, the online symposium that brought about some great, and some less than great, discussion on her controversial proposition that by turning cyberbullying into a sexist thing, it would justify suppression of free speech and anonymity.  Yet Randazza was excluded as a “symposiast”.  Worse still, when a crack developed in the closed circle of “open-source academics” and Randazza had a chance to get a word in, he was either ignored or berated by other lawprofs. 

Though I think the law school demand side is a very important component of this story, the question in the title of this post is meant to urge discussion of the law school supply side.  In particular, I would like to hear view from anyone inside or outside the law school marketplace as to whether law schools ought to be, in light of modern labor realities, significantly reduce the sizes of their graduating classes either by letting in many fewer students or failing out many more students before these students accumulate huge law school debts.

While Doug alerts us that he has an “innovative solution” which he intends to reveal after the rest of us have made fools of ourselves by answering his question, I will play my part and offer my two cents.

Both. But for different reasons.  Reducing the size of law school classes to reduce the supply of lawyers in a society that can no longer absorb them may be “dream crushing” to some, but beats being “debt crushing” to many, as well as critical to maintaining a society that doesn’t have a lawyer per capita.  Too many lawyers, un- and underemployed, as well as underutilized, are the devil’s playground.  Since it’s not about the dreams of wannabe lawyers, but the harm we wreak on society when we have nothing to keep our hands occupied day after day, the need to reduce the butts in seats is manifest.

And yet, even those who score well enough on the LSATs and have plenty of As on their transcripts may not prove to have the chops to be lawyers.  When I went to law school, the dean would give that great speech where he told us to look to our right, look to our left, that one of us would not be graduating.  Not every kid who gets into law school has the capacity to be a lawyer. Not every student will prove client safe.

We, meaning the public as well as more experienced lawyers, expect law schools to vet their students, to thin the herd, so that people who would make extraordinary interior designers but awful lawyers don’t get spit out the other end.  My understanding, sadly, is that as long as they pay tuition, never a problem as long as student debt can be assumed, they get to remain in law school.

Part of the obligation of law schools, and law profs, is to make sure that the students from whom they take money, and the students to whom they given the imprimatur of competency, has the ability to one day make a competent lawyer.  Not everyone does.  And yet they get their degree just like everyone else in their class.

Do your job. Thin the herd.  Do it for the children.  Do it for everyone.