A while back, a pseudonymous mystery lawyer appeared who sought to lead the legal profession in an uprising against evil, corrupt judges.  It fizzled immediately, as well it should have. It was a silly idea from the outset, made even sillier by its instigator’s assumption of the name “Atticus.”

Apparently, he continued to write his Strike Lawyer blog, capturing the imagination of a few others who were naturally inclined to grasp onto outlier political views and hatred of the system.  Funny how the disaffected gravitate toward each other.  Strike lawyer, as he’s come to be known, has decided to come out of the closet.  It turns out that he’s John M. Regan, Jr., a New York lawyer why says he tried to resign from the bar but was turned down, and thereupon fled north.

John now explains the details of his efforts, that he represented a woman named S.D., and that the injustice and corruption he encountered led him to great extremes, ultimately losing his family, giving up the practice of law and moving to Canada, where he hopes to vindicate his position about the courts of the United States, in general, and New York, in particular, in a hearing on his application to take refuge in the north.  In the meantime, he plans to  tell his story and name the players.

Both  Mark Bennett and Jeff Gamso, upon learning of strike lawyer’s identity and story, gave him credit for his grand gesture.  I’m afraid that I can’t join them.  While I can’t claim to know John, he was a  regular commenter here under the name “John R.,” and to the extent one can get to know anybody on the internet, I came to know John.  Indeed, John was kind enough to tell me a bit about himself :

John R. wrote:

Sure. Attorney since 1989, mostly Rochester. Done a little bit of everything, but tried to concentrate in personal injury. Keep coming back to criminal defense here and there, though, because there’s so much of it. I shouldn’t do it, but I do.

Usually it’s because I need the faster fee and it looks like it won’t get too involved. But you can never count on that. You can take a case thinking it’s one thing and it can really surprise you. And if it does, well, criminal cases always take priority, whether they surprise you or not.

Before I went to law school I was a naval officer. Before that college. Majored in philosophy. That gave me really different standards when it comes to argument. That’s been a significant impediment in practicing law, because I expect other lawyers and judges to reason well. They rarely do. Or maybe it’s just a different kind of reasoning. Whichever, I don’t like it as much.

Juries seem to like my kind of reasoning more, though. Not that I like going to trial. I’m scared to death most of the time. I kill myself trying to win. I try not to get in that position if I can avoid it. Then again, if you have to do it, you do.

I don’t really know what else to say about my background. I’ve probably gone on too much as it is.

I am also grateful to a few members of the Rochester legal community.  I won’t name them all.  Lamentably, this is for their own protection.  But the involvement of a couple of them – Don Thompson and Catherine Cerulli – is already known.  Kate provided her very important expertise in dealing with sexual assault victims pro bono; Don Thompson took over from me in Livingston County Court in 2006, probably sparing me from being arrested, prosecuted or even killed.

Don represented S.D. when she took an Alford plea and mooted the war John planned to wage.  This raises some interesting questions, whether S.D.’s situation was impaired by John’s representation, and she would have been better served had she been represented by a lawyer with greater experience in criminal defense.  Maybe the grave injustice happened under John’s watch because it was under John’s watch? 

Then, if Don Thompson represented her through the Alford plea, given his experience, maybe there’s a reason why a plea was the proper outcome?  And of course, there is a huge question stemming from the melodramatic description that, had John continued to represent S.D., he might have been “arrested, prosecuted or even killed.” Killed?  Really?

Like Gamso, reading John’s story made me think of the buddhist monks who set themselves afire in protest of the Vietnam war.  It must be a “lawyers of a certain age” thing.  But such extreme and dramatic displays didn’t end the war, and won’t end the failures of our legal system.  They just produce a pile of ashes and one great photograph. 

Many people rage against the machine. Some are lawyers. Perhaps it makes them feel as if they’re making a difference, but it’s more a reflection of grandiosity than concern.  They want to achieve revolution, become known and admired as the father of some act of greatness that changed everything.  I’m not qualified to diagnose this mental state, the compulsion to sacrifice all for the grand gesture, but it’s neither something to admire nor something to emulate.  Nuthouses are full of people who believe they are saviors, if only they can nail themselves to a cross.

Rather, my preference is for the men and women who fight each day against the system, client by client, to eke out the victories whenever they can, and make the prosecution, police and judges miserable when they do wrong.  Then they go home and have dinner with their families, and come back to fight the next day.  You see, “injustices” (a word reflecting a facile perspective of events and outcome personal to the perceiver) happen all the time.  None is the gravest injustice ever, except perhaps the Holocaust.  There will be another injustice tomorrow to fight.

General George S. Patton famously said, “The object of war is not to die for your country but to make the other bastard die for his.”  This is what criminal defense lawyers try to do, day after day, with no expectation that anybody is going to build a statue of you.

I’m afraid I’m not impressed with any of this, and that this may be well-intended vanity and arrogance, but nothing more.  Rather than run to Canada to fight against the greatest injustice ever, John, you should have taken your cue from Don Thompson and stuck it out and fought.  But then, you were never a criminal defense lawyer.  Now, you’re just a self-proclaimed martyr to your own cause. Stay away from matches.

For a long time, cameras have been held up as the best means of capturing what actually happened, and thus the way to preserve both the good and bad of cops and criminals, to assure that we would have a verifiable means of knowing what happened rather than feel constrained to accept the cop’s version by default. Cameras.  That’s the answer.

But there was one glaring concern, and against the tide of defense support for cameras, I kept raising one issue that remained problematic: When the cops control the cameras, what happens when they are only used as a sword, and disappear (or are altered) when they’re a shield? The Texas Court of Appeals answers in  Martin v. Texas.  Nothing.

Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.

“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.

The court was unmoved.

We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'”

The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.

“There is no indication in the record that Jennings or his supervisors handled the videotape in question any differently than they handled other videotapes,” Pemberton wrote. “Nor is there any indication in the record that the tape was not preserved because of any improper motive on the part of Jennings or other officers.”

Officer Jennings knew one thing, that there was nothing on his dash cam that he needed to prove his word.  Did he know whether the tape showed anything helpful to the defense?  We’ll never know, since the tape is gone (meaning, we have nothing for the word of the cop and defendant, and cops always win the swearing contest) and Jennings need only shrug and smile shyly.

At A Public Defender, Gideon calls this the Barney Fife Exception. Barney must have gotten a whole lot smarter, as this holding sanctions the controlled use of video for the benefit of police while approving its destruction when it has any potential to aid the defense.  If Barney knows what’s good for him, he makes a calculated decision: leave the video out of his reports and then it magically disappears. 

By leaving the decision of whether the dash cam video is of evidentiary value in the exclusive hands of police, it’s both an invitation, and a validation, of the destruction of exculpatory evidence.  But it’s not exculpatory?  Then preservation harms no one.  But the court has given one side complete control and a free pass for its decision. 

The only way around it is proving bad faith, the problem with which is that it can only come from the mouth of the officer or from the existence of external evidence, such as a second video tape showing the cop a liar and demonstrating why he sought to have his dash cam video destroyed.  Neither are likely to happen, but more importantly, neither set a legitimate boundary for the preservation of evidence.

What makes this decision appalling is that the Texas Court of Appeals had the opportunity to fashion rules to assure that critical evidence would be preserved so that a defendant, or prosecutor for that matter, would have access to some heavy weight evidence to show what occurred.  Memories are lousy and self-serving. Videotape may not be perfect, but it’s never suffers from Alzheimer.  That’s only true, however, if it’s retained.  The spoliation of evidence leaves everyone smelling a stink, except the Texas Court of Appeals.

Some might complain that it’s too much of a burden to maintain dash cam video in every instance of an arrest.  Why?  Tons of paper gets filled out. An arrest is a sufficiently significant event to take up space in a local jail, to waste the time of a bunch of educated folks, some in suits and one in a robe.  It generates a ton of papers.  What’s the big deal about taking the few minutes to download the video onto a DVD and sticking it in the file?  If the crime is worth the potential destruction of the defendant’s life, it’s worth the few minutes of the cop’s time to keep the video.

The court’s facile reliance on good faith on Arizona v. Youngblood, where a rape kit was preserved by refrigeration but some clothing was not, making it untestable for DNA, was not only an awful decision (as conclusively proven by  subsequent DNA testing as more advanced techniques allowed, fully exonerating the defendant), but misses the point of this case.  In Youngblood, the failure to refrigerate was a mistake, as the correct practice was to properly preserve the evidence.  Here, the decision validates the destruction of evidence because the cop, whether the smartest, dumbest, or most malevolent, claims he didn’t see any evidentiary value.

For quite some time, the notion that having a video of interactions between police and others would be a panacea, the means by which we could bring honesty to a system that perpetually preferred the word of a cop.  And now, we achieved pretty much the exact same result, except that the cop has video to back up his word and the defendant has nothing more than the police officers allows him.  This isn’t the way it was supposed to work.  This could have established some basic ground rules that would give video half a chance of serving a purpose in memorializing conduct, no matter who it favored.  But it doesn’t.

Even with video, the court deferred to the cops.  And even Barney Fife knows when it’s a video he would prefer no one ever see.

H/T Radley Balko

Tom Friedman’s column in the  New York Times explains a thing or two.  After going through a litany of the ills plaguing society and the world, he says:

What’s going on here?

There are multiple and different reasons for these explosions, but to the extent they might have a common denominator I think it can be found in one of the slogans of Israel’s middle-class uprising: “We are fighting for an accessible future.” Across the world, a lot of middle- and lower-middle-class people now feel that the “future” is out of their grasp, and they are letting their leaders know it.

While he puts it largely on the world stage, it’s equally applicable to lawyers.  We want the world to adjust to us.  We want what we want, and we’re not getting it, so rather than hunker down to the heavy lifting of doing better, we demand that someone change the our world so that we can continue doing what we find easiest and most convenient and still achieve our dreams.

Why now? It starts with the fact that globalization and the information technology revolution have gone to a whole new level. Thanks to cloud computing, robotics, 3G wireless connectivity, Skype, Facebook, Google, LinkedIn, Twitter, the iPad, and cheap Internet-enabled smartphones, the world has gone from connected to hyper-connected.

This is the single most important trend in the world today. And it is a critical reason why, to get into the middle class now, you have to study harder, work smarter and adapt quicker than ever before. All this technology and globalization are eliminating more and more “routine” work — the sort of work that once sustained a lot of middle-class lifestyles.

Some will see this explanation and think he’s talking about “innovation.”  If I just grab hold of innovation before anyone else, I can soar to the top while others are stumbling about, bumping into themselves.  Hop on the train, baby, and ride it to success.

But note that he talks about something different as well, that working harder and smarter is at the core of adapter to change.  He’s not saying that there’s some easy route, some magic bullet, that will solve problems, but that the upper end of the spectrum keep getting farther away and harder to reach.  Need proof?

Think of what The Times reported last February: At little Grinnell College in rural Iowa, with 1,600 students, “nearly one of every 10 applicants being considered for the class of 2015 is from China.” The article noted that dozens of other American colleges and universities are seeing a similar surge as well. And the article added this fact: Half the “applicants from China this year have perfect scores of 800 on the math portion of the SAT.”

Young people in China are deluged by competition.  There are an awful lot of them, and they are told that either they do better or they fade quickly away (or worse).  It’s hard to get a perfect score on the math portion of the SAT.  But less than that isn’t going to distinguish a Chinese student sufficient to be worth sending to Iowa.  Think how sad that must be.  Yet they don’t whine about the unfairness of their circumstances. They work harder.

In the meantime, this same tool that allows for some to rise above the rest also provides an opportunity for the rest to create a critical mass of mediocrity.

This globalization/I.T. revolution is also “super-empowering” individuals, enabling them to challenge hierarchies and traditional authority figures — from business to science to government. It is also enabling the creation of powerful minorities and making governing harder and minority rule easier than ever. See dictionary for: “Tea Party.”

Those who don’t want to put in the effort to achieve now have a place to join with others who believe that life is unfair to them, the government has failed them, by not accommodating their needs and making them wildly successful as they sit alone and spend their time pretending to be somebody on the internet rather than actually doing something with their lives.

No one pays attention to one voice complaining   We can’t hear it. But put enough voices together and the sound grows louder and louder.  Nothing wrong with that, except when you look to see what they’re complaining about.  When it’s whining over the unfairness of expecting hard work and excellence, hard core effort, the internet provides the medium for the mediocre to have their say.  This doesn’t mean that government is doing a bang up job, or that people who get less than 800 on their SAT have nothing to offer society.  Not at all. 

But never before in the history of mankind has complaining been elevated to lifestyle.  And it’s because of technology, that allows the mediocre to meet each other, share their vision of a mediocre society that provides them with the stuff of their dreams without any heavy lifting, and create a virtual public square to demand that society change to meet their needs.

Tom Friedman says that tech has eliminated much of the routine that was sufficient to keep the mediocre busy and sustain a middle class lifestyle.  It’s gone, baby, and it’s not coming back.  If you’re satisfied with mediocrity, then get used to being hungry and miserable because you’ve just ended any hope of doing better on your own. 

What about mass protests organized around twitter against governments that fail to provide young people with the opportunity to have wonderful lives?  The medium can do that, join together people from diverse places to coalesce into a massive force promoting their goals.  But no government, no ABA, no law school, can make you better than you make yourself.  The most it can do is create a tyranny of the mediocre, where society agrees to its demand to provide Cheetos* and low-cost internet connections so that they won’t take to the streets and attack defenseless hipsters.

But the best you can hope for is the trickle down from those working harder than you, who are too busy achieving to join your protest.  The reason for this is obvious, because no creates anything of value by whining about it.  Complaints don’t create.  We have great tools available to us today, but they’re just tools.  We can use them to achieve more, faster, better, or to find a bunch of malcontents with whom to share  unhappiness.

The constant sound of whining on the internet about how unfair it all is won’t make your lives happier or your futures brighter.  You have to do that for yourself.  Too much effort?  Bummer.

*No Cheetos were harmed in the writing of this post.

Survey says that Casey Anthony is the most hated person in America, much to Michelle Bachmann’s relief.  That her life is in serious danger is beyond question.  Yet Florida Judge Belvin Perry, after ten days of soul searching, has decided that she must come out of hiding and serve her year of probation.

This may not end well.

Given the residual anger over Anthony’s acquittal for murdering her daughter, Caylee, combined with the broad array of nutjobs who believe that they have been chosen by God to exact revenge, there’s an awfully strong possibility that some Florida yahoo will try to execute Anthony.  Perry knows this. He doesn’t care.

In the order filed today by Perry, he writes that probation is meant to rehabilitate an individual and that serving probation while incarcerated “would clearly thwart society’s interest in extracting a full, fair, and just punishment for a crime.”

“To permit the Defendant, whose counsel was well aware that the probation was to begin upon the Defendant’s release from jail, to avoid serving probation now, would take a lawfully imposed sentence and make it a mockery of justice,” he writes.

All of this would be fine if this wasn’t tantamount to putting a target on Anthony’s head, but when the reality is that a bunch of nice folks have suggested that Casey Anthony needs to die, the old order of probation takes on a different character.  As in a death sentence.  If Judge Perry is worried about a mockery of justice, then he really ought to consider the impact of compelling a defendant to put in a position where her murder seems pretty darned likely.

Perry blames Jose Baez for trying to bootstrap a “scrivener’s error” in the sentence to argue that her probation was already served.

“To additionally seek to use a scrivener’s error to achieve an end that was against the court’s intent, especially where both parties had argued the issue of when probation should commence, strikes at the very foundation of our justice system,” Perry writes.

He said that Baez violated his duty of candor, which is “the gold standard that all officers of the court — especially attorneys — must live by.”

Bad Jose, taking advantage of a mistake in the order to save his client from near-certain death.  Notably, Judge Perry doesn’t blame the incompetence of the scrivener.  Hey, stercus accidit.  It’s very noble of Judge Perry to think so much about the foundation of our justice system, but it would be nice if he considered the foundation of Anthony’s continued existence, which precludes a bullet in the head.

The problem here isn’t a matter of whether she served her probation already or should be compelled to serve it in the ordinary course.  All things being equal, she should complete her probation just like any other defendant.  The difference, of course, is that not too many other defendants have good reason to believe that serving a sentence of probation will result in their death.  Casey Anthony has every reason to expect that to happen.

The decision by Judge Perry that justice demands that Casey Anthony come out of hiding and play by the same rules as everyone else fails to take into account another, countervailing duty.  He has a duty not to issue a ruling that is likely to result in a defendant’s death, unless he’s imposing capital punishment.  Anthony was acquitted, preventing Perry from ordering her execution straight out, and enabling him to give that great speech he wrote for the time of sentence about the horrors of a mother murdering her daughter. 

But is he ordering her execution through the back door?  It sure looks that way.

This court is very mindful that it is a high probability that there are many that would like to see physical harm visited upon the Defendant,” Perry wrote.

Yeah. So?  Does Perry suspect his “mindfulness” has the power to stop bullets?

While he may feel an obligation, not to mention public pressure, to force Anthony to serve out her probation, Judge Perry has concomitant obligation to make sure his order, particularly given that we’re talking about probation here, doesn’t compromise her life.  This isn’t your everyday probation situation, and pretending that it is by failing to account for the very real threat to her life, undermines the foundation of the legal system.  Judges don’t expose probationers to death to make a point and curry public favor.

And what is probation to do with this?  Should her probation officer help get her a job at the Piggly Wiggly?  Will she report under cover of darkness?  Casey Anthony’s notoriety is something that no one can ignore, including the cogs in the system that are likely to be blamed should harm befall her.

Unusual circumstances call for unusual responses, and Judge Perry’s handling of this issue in the most ordinary of manners (and with some of the sorriest platitudes every uttered), isn’t merely offensive, but a shocking dereliction of duty.  No matter how hated Casey Anthony may be, and no matter whether she deserves the hatred being heaped upon her, her death at the hand of some wacko is not part of her probationary sentence.

So what speech will Judge Perry deliver at her funeral?  There aren’t many platitudes to cover the murder of a hated but acquitted defendant for having been order to serve out probation, and Judge Perry’s way with words clearly isn’t up to the job.

It’s been 18 months in jail and a half dozen lawyers since Gigi Jordan was arrested for the murder of her son, Jude.  Judge Charles Solomon denied her bail again, even though the proffer was to match the terms allowed Dominique Strauss-Kahn. 

There were four major distinctions between the two cases: 

DSK is a billionaire, whereas Jordan is only worth about $40 million.
DSK is a French national, whereas Jordan is American.
DSK is accused of raping a maid, whereas Jordan murdered her son.
DSK is reasonably sane, whereas Jordan’s story is nuts.

The background to this case goes well beyond bizarre, deep into the seriously crazy category.  I hesitate to even try to explain, as it goes on for more than 50 pages in the defendant’s memorandum in support of bail.  The TL;dr version is that Gigi, who made millions in a pharma startup, had a son, Jude, who suffered from significant developmental challenges.  She had an ex-husband biological father of her son (of sorts) who, she believed, wanted to kill her.  She had the biological father of Jude ex-husband, who happened to also to be her business partner (of sorts) who, she believed, would sexually abuse Jude and, she believed, had raided her assets. (Edit. Note: Got the roles reversed. It’s complicated.)

As Gigi roamed the country seeking medical help for Jude’s condition, she learned of all the things that others were doing/planning to do, to her and Jude.  She brought her story to law enforcement, who thought she was nuts.  The best she got out of them was a  72 hour stay for observation in Wyoming.  She tried to get help, but not even $40 million in net worth was enough to make the FBI believe her.  Now that’s a wild story.

Gigi then rented a $2300 a night suite at the Peninsula Hotel in Manhattan for February 4-5, 2010, where she planned to end the nightmare and protect Jude, her beloved but severely disabled son, from a life of misery.  She gave Jude an overdose of prescription drugs, and he died.  Her own suicide didn’t go as smoothly.

The defense team went from Gerald Shargel through some Washington Biglaw types and eventually ended up with my old pal, Ron Kuby, and oft-confused Harvard lawprof Alan Dershowitz.  Together, they have devised a novel theory of defense, Altruistic Filicide.  In other words, Gigi Jordan’s killing of her son was a mercy killing, the lesser of all evils in her mind.

The problem with this defense, aside from the fact that it’s never been tried anywhere, is that it’s primarily grounded in justification, but doesn’t quite hit the mark since justification would allow Gigi to kill the person threatening harm.  Had she killed her ex-husband or the biological father, the two men she contends would do the harm to her and Jude, that would be one thing.  Killing her son instead, who was a threat to no one but who would spend his life suffering at their hands, is an entirely different matter.

To craft the defense, Kuby explains that it overlays elements of duress and necessity, essentially a mash of elements of defense that justifies Gigi’s decision to euthanize her son rather than leave him motherless and subject to a life of abuse.  The thought process was better explained by analogy:

Imagine that a couple of terrorists get hold of a nuclear missile, but don’t have the launch codes.  They have a innocent hostage who knows the codes. You are there with a gun with one bullet.  If the terrorists get the launch codes, they will cause horrible death and destruction. Who do you shoot?

My first real introduction to virtual law offices and unbundled services came after  Stephanie Kimbro offered to send me a tract she had written explaining not only the concepts, but the execution.  It was an impressive piece of work, well written, well reasoned and thorough in its address of the multitude of significant issues surrounding these innovations.

While I was not entirely persuaded by aspects of her approach, I was very impressed with Stephanie’s obvious concern for, and very real effort, in addressing the ethical aspects of her practice.  She was acutely aware of the potential for clients being mislead or confused, of the potential hazards of the concepts, and went to great lengths to assure that everything she was doing was clearly explained. 

My reaction was that a young lawyer like Stephanie reflected the best in innovation.  I had serious doubts that others wouldn’t cherry pick the part of Stephanie’s concept that were easy and profitable, and ignore the parts that were difficult, onerous and might cause potential clients to shy away.  Not every young lawyer would be as industrious and ethically concerned as Stephanie.

Belying this concern is the notion floating about among those who find the virtual law office model perfect for their situation that the restrictions of state jurisdiction and admission an archaic concept.  One of the changes that legal futurists want to see happen is the elimination of admission by state in favor of national admission, thus making the limitations of state borders and the “tyranny” of state disciplinary rules an unpleasant memory.  With the advent of the internet, the limits of physical presence no longer matter, it’s argued.

Missing from this facile analysis is that states have laws and procedures that differ from one another.  The internet may allow a lawyer from Nebraska to scarf up clients in Wyoming, but it doesn’t enable them to know Wyoming law and practice, nor provide any measure of security to potential clients that they are competent to render counsel or representation there.  Having tried cases in states across the country, always with local counsel at my side, I can attest to the reality that it is impossible to provide competent, no less zealous, representation without knowledge of local law, procedure and practice.

The panacea of eliminating state admission will certainly exist for lawyers who find it very convenient to exist virtually, but this is where the ethical concerns come into play.  These lawyers think only of themselves. They say they are thinking of clients, as in the curious argument that “since I’m such a wonderful lawyer and my clients love me so very much, by making myself available and convenient for them to hire me, I’m doing clients a service.” 

Aside from this point being entirely circular and self-serving, it’s unpersuasive.  Not to the maker of the argument, or to others who, like the maker, want so dearly for the point to be true that they are blind to the flaws, but to the rest of the legal profession, young and old.  We cringe upon hearing/reading irrational arguments.  They scare us, that these arguments are being made by people who are admitted to practice law and hold the responsibility of other people’s lives and fortunes. 

It scares us, young and old, because the arguments reveal something we fear, that there are lawyers who are incapable of distinguishing rational arguments, sound thinking, competent analysis, from idiocy.  We know there are incompetent lawyers out there, lawyers we can’t believe could possibly survive law school, pass the bar, be allowed the awesome responsibility of a lawyer.  We know they’re there.  We are frustrated when their existence smacks us in the face.  We’re here. We’re morons. Get used to it.

Then there are the vultures who have created businesses that prey on young, naive, ethically challenged lawyers, bolstering their vague comprehension of ethics by telling them that they are just as wonderful as anyone else, that experience is worthless, even counterproductive (look at those stupid old dinosaurs who don’t get it), and pushing them to ignore both the development of skills and the recognition of ethical concerns so that nothing stands in their way from overnight success. 

They tell young lawyers what they want to hear.  We all gravitate toward what we want to hear.  We adopt it. We embrace is.  Whether it’s blindness or myopia, these vulture take advantage of youthful exuberance by playing to their needs and prejudices.  A point ignored, that I often say to young lawyers, is that if you are so brilliant and wonderful now, how much better will you be ten years from now, when you’re still brilliant and wonderful, but have a decade of experience under your belt? 

The smarter ones stop dead in their tracks, realizing that this point is both obvious and in fundamental contradiction to what they’re being told by the vultures, that they are already the complete package and should ignore those experienced lawyers warning them that they aren’t ready for prime time.  They realize that those experienced lawyers are them, ten years in the future. They realize, maybe for the first time, that experienced lawyers aren’t some breed of dinosaur, but just like them, only with experience.

A commenter here recently scolded me for being negative, telling young lawyers what they shouldn’t do, where she thought I ought to tell young lawyer how they could market themselves to become overnight successes.  It was a particularly foolish comment, assuming that there is such a magic bullet.  My advice to young lawyers has been offered here repeatedly, work hard, develop skills and always put your clients’ interest ahead of your own. That means we do nothing that might deceive clients or potential clients.  It also means that you won’t achieve overnight success. 

The young lawyers who want to embrace innovation because it allows them to engage in the practice of law under whatever terms best suit their needs don’t like my advice.  As with the commenter, it’s as if it never happened.  Don’t tell me to work hard, tell me how to get rich on the internet!!!  And if you don’t, then you have nothing to offer me.  They instead flock to others who will whisper the sweet words they want to hear.

The sense one gets is that young lawyers, busy ascribing malevolent motives to old lawyers to explain why we use ethics to scare them away from the things that will make them overnight sensations, are all a bunch of dunderheads.  They can’t write. They can’t think. They have no grasp of ethics and no concept of what it means to be a lawyer.  They are most assuredly not client safe.

But then, there are plenty of young lawyers,  Matt Brown in Tempe, Keith Lee and Stephanie Kimbro, for example, who remind me that they aren’t all wrapped in their quest to promote themselves as something they’re not, and likely will never be given the poor quality of their writing, thinking and ethics.  There are plenty of young lawyers who aren’t out to achieve immediate fame, wealth and prestige.  It’s just that the self-promoters, the whiners, the deceitful, make sure they’re screaming the loudest.

It’s not about innovation, which may or may not be viable based on far deeper concerns than whether it has the potential to make a quick buck for a particular lawyer at any given moment.  It’s not about old lawyers hating or scaring young lawyers, though a good scare on matters of ethics is critically impo
rtant to their realizing that ethics matters, both because it could spell the loss of their ticket as well as the more important reason, because lack of ethics harms clients.

This is about whether the future of the law lies in elevating the worst, most facile ideas of ignorant children, or developing the next generation who will bring dignity and competence to their profession and those we exist to serve.  If this doesn’t comport with your view of the future of law, and for some it won’t, then I sincerely hope you find something else to do with your life.  You do not deserve to be a lawyer.

Postscript:  This post comes from the discussion around the blawgosphere started by Rachel Rodgers’ post at Solo Practice University.    She’s been given a  good  thrashing for  her efforts, yet appears to have  learned nothing from the experience.  But this post isn’t about Rachel Rodgers, per se, who, as marketers like to say, has diminished her brand.  Rachel is but one young lawyer among many, even if she’s made herself the poster girl for this issue.  Let’s assume that Rachel will never grasp the issue, and focus our energies toward others who have the desire and capacity to be better.

Rather, this is a post about all lawyers, young and old, for who hide behind the word “innovation” as an excuse to pretend that they can recreate ethics to justify whatever pleases them.  They have the choice of being a Stephanie Kimbro, for whom ethics is a fundamental concern, or a Rachel Rodgers, for whom ethics is hurdle to circumvent. 

The Annual Meeting of the American Bar Association, held in Canada as there was no American city worthy, produced little of surprise beyond the  distribution of free condoms to the participants.  I hear that some put the condoms on their heads, which makes perfect sense.  What was surprising was that the condoms were free, as if the delegates wouldn’t have paid double for them if they had to.

With this backdrop, outgoing ABA president Stephen N. Zack used his bully pulpit to call for a change from lawyers.  Not for a return to integrity.  Not for a return to the zealous representation of their clients.  Not to stop the downward spiral of deception in the quest to make money.  From the ABA Journal :

ABA President Stephen N. Zack today called on lawyers to take the lead in returning civility to a public arena that has come to be dominated by anger and insult.

“Civility used to be inherent in public discourse,” Zack said in an address this evening to the Opening Assembly of the ABA’s 2011 Annual Meeting in Toronto. “Where did we go wrong?”

Too often today, said Zack, whose one-year term as president ends Tuesday, the approach people take to political discussion and debate is characterized by an attitude that, as he described it, “I disagree with you, and not only that, but you’re a bum, and I’m going to yell so loud I can’t hear what you’re saying.” That tone cannot continue, Zack told a packed audience at Koerner Hall in Toronto’s Royal Conservatory of Music. “The continuing slide into the gutter of incivility demeans us all,” he said.

A kinder, gentler nation. Why does that sound so familiar?  While it’s not clear the arena to which Zack directs his remarks, as it’s not clear whether he’s speaking of ad hominem argument or the tendency toward the substitution of lies for fact or pushes for violence. 

If his focus is national politics, then he’s mistaken.  America has a checkered past when it comes to civility, although our national memory often ignores the rough words and remembers only the platitudes.  “Screw you, Madison, you blithering idiot,” would hardly seem right etched into the lintel over a legislative chamber.

An issue raised by such calls is that they are used by self-serving scoundrels as a sword rather than a shield.  How often does someone propound a point by arguing, I am right and anyone who disagrees with me is mean, stupid and ugly? 

To this end, it’s critical to understand one of the most misused phrases in the lawyer’s lexicon, ad hominem. It comes from the logical fallacy, argumentum ad hominem, which refers to attacking the speaker and his motives rather than the argument.  It’s often misunderstood as saying uncivil words. It’s not.  If an argument is stupid, or the motives of the arguer undermines the argument, it is not an ad hominem attack.  Indeed, it is often the appropriate response to argumentum ad ignorantiam .

Which raises the crux of the problem, that the real issue seems to be that people want to be free to make whatever point they want, whether it’s a well-founded, factually accurate, logical point or their unfounded, irrational, knee-jerk feelings, without anyone challenging them or taking them to task for what they say.  It’s an entitlement, the right to express an opinion.

The snarky response is that opinions are like assholes, everyone has one and they all stink.  But this is unhelpful, and untrue.  Some opinions are illuminating and raise issues worthy of thought, if not agreement.  Some aren’t.  Some are just stupid, baseless and worthless.  And yet people feel empowered to tell them to the world.

The other day, I twitted about a sentence in a cases, and someone twitted back to me with a question about it.  I responded, although I didn’t know the person and believe he was either a law student or young lawyer.  He replied by telling me what he thought (“I think the law is stupid”).  My sur-reply was, “who cares?”  Not only did I not know this person, but I certainly didn’t invite him to express his opinion. I answered his question, nothing more.  My reaction was less than warm, but was it wrong?

There is no interest group out there advocating for less civility in public discourse, but that masks the problem.  The nature of argument is poor is generally poor, whether because it confuses feelings with reasoning, relies on falsehood or self-serving assumptions rather than fact or employs a logical fallacy. 

On the sidebar of this blawg, I include the following:

I invite thoughtful comments, but please keep it civil and respectful.

With regularity, someone will point to these words and play “gotcha” with me, whining that I have not been civil and respectful to them.  They miss the precatory phrase, that I invite thoughtful comments.  The poverty of thought is often astounding.  There are times I mutter to myself, how does this person manage to get out of bed in the morning without hurting himself.  I fully expect the person posting a comment (and often a question, which I note is not a comment) to believe that whatever it is he’s thinking (or more likely, feeling) is indeed thoughtful, if not downright brilliant.  This is a very subjective determination. Here, I get to decide because this is my home.  Elsewhere, it’s not my call. Or yours, unless it happens to be at your home.

President Zack’s call for civility is banal.  Of course, it would be much nicer all around if we were all civil with each other.  But it starts with a higher level of thoughtful public discourse, and frankly, much of it starts in the gutter and stays there.  If we were capable of better thought, we would have more civil discourse. If people limited their public discourse to rational ideas, they would be far more likely to receive a civil response.

People feel empowered to spew any nonsense that pops into their minds, and with the absolute belief that they are entitled to do so, and do so without impunity.  This is the root of incivility, and the expectation that others owe you civility in return for stupidity is misguided.  So you want to be treated with civility and respect? Then control your impulse and say things worthy of civility and respect. You know, thoughtful things. 

If only Zack focused on the action rather than reaction, he might have been on to something. Instead, he was just giving away free condoms.  No one will get a disease, but no one will give birth to a worthwhile thought.

Former Luzerne County, Pennsylvania Judge Mark A. Ciavarella Jr. has been sentenced.  Not to the 87 months negotiated by the United States Attorney as part of a plea deal,  rejected by District Judge Edwin Kosik, but to 28 years in prison.

As  Jeff Gamso puts it,

Gordon Plugh thought it was over.  Judge Charles Siragusa in the Western District of New York suppressed his statements and the Second Circuit affirmed.  That’s pretty much the end of the story.  But not this time.

The ruling seemed clear enough, that Plugh’s refusal to sign the waiver of rights form after his arrest for kiddie porn was an unequivocal invocation of his Miranda rights.  No means no, you know?  But then the Supremes decided Berghuis v. Thompkins, holding the silence is no longer golden.

As the government’s behest, the court revisited its affirmation of Judge Siragusa’s suppression, and, gasp, Plugh’s world shifted.

Specifically, the Plugh I majority concluded that the defendant’s “unequivocal[] refus[al] to sign the waiver [of rights] form” was itself sufficient to invoke those rights, id., thus rejecting application of the standard set forth in Davis v. United States, 512 U.S. 452 (1994), whereby a defendant must “unambiguously” invoke his rights in order to cut off questioning, Plugh I, 576 F.3d at 142-43. As the Plugh I majority reasoned, “Davis does not instruct courts on how to analyze an initial invocation of one’s Fifth Amendment rights following the Miranda warnings” but is instead limited to cases where a defendant attempts to “subsequently invoke[] previously waived Fifth Amendment rights.” Id. at 143.

Shortly thereafter, while this case was pending before the district court, the Supreme Court announced its opinion in Berghuis v. Thompkins, –U.S.–, 130 S. Ct. 2250 (2010). There, the Court clarified that the Davis “unambiguous[]” statement standard does control a court’s analysis of an initial invocation of both the right to remain silent and the right to counsel, id. at 2259-60, and it further held, on the facts of that case, that the defendant’s conduct, which included a refusal to sign an advice-of-rights form, did not amount to an “unambiguous” invocation of those rights sufficient to cut off further questioning by law enforcement officials, id. at 2256, 2260.

If this seems a bit much to follow, here’s the TL;dr version: Unequivocal isn’t unambiguous.  In a sense, you can’t quite blame the Circuit, where the opinion by Judge Debra Ann Livingston adopts one of the most absurd 5-4 rulings to ever parse American rhetoric.  Of course, to get there, the Circuit could have just said “no,” whatever that means these days, or focused instead on the factual disparities of the case before them from the Berghuis decision.

Having made the choice of revisiting its earlier decision, the court started from a curious position, set forth in footnote 3:

Because we revisit the district court’s order of suppression, in doing so, we review its factual findings for clear error and in the light most favorable to the government. We review questions of law de novo.

Wait a sec.  The government lost in the district court, lost on appeal, lost again in the district court in seeking reconsideration and was now back to the Circuit for the second time, and the Court’s review compels them to consider the facts “in the light most favorable to the government?” Win, lose or draw, the government gets the benefit of the doubt?

The upshot of the opinion is that Plugh’s unequivocal negative response to signing away his rights is not the unambiguous equivalent of an affirmative unequivocal invocation of rights.  In other words, just because he refused to waive his rights doesn’t mean he invoked them.  He was in Miranda rights purgatory, and as footnote 3 tells us, a draw goes to the government.

What’s learned from this decision, as well as Berghuis itself, is that there is no substitute for the utterance of the magic mantra:

I do not want to answer questions.

I want to speak with my attorney.

Forget nuance or politeness.  Forget trying to fudge the line between getting your face smashed by the agent who doesn’t think well of your assertion of rights that will make his life more difficult.  Either get the words out of your mouth exactly as shown or kiss it good-bye.

The only remaining problem, of course, is when the defendant says precisely what he’s supposed to say in order to invoke his rights, and the agents testifies that it never happened.  There’s no camera recording the invocation, nor witnesses who aren’t wearing shields or cuffs.  It’s the word of the creepy, evil defendant that he said the magic words versus the word of the hero, honest, law enforcement agent who protects us from terrorists and saves babies who says he didn’t.

But then, that’s always the case, isn’t it?  There’s absolutely nothing ambiguous about it.

Via Louisville Law School Dean Jim Chen at MoneyLaw, a blawg for alternate concepts of how we should look at legal education (and where Jim handed me the back door keys years ago but never added me to the list of contributors lest I stink up the place with my vulgar trench lawyer language and attitude), there’s a new deep throat in the Academy.

I can no longer ignore that, for a very large proportion of my students, law school has become something very much like a scam. . . . When people say ‘law school is a scam,’ what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.

So laments the introductory post to Inside the Law School Scam, a confessional blog by an anonymous “tenured mid-career faculty member at a Tier One school.” This fascinating contribution to the burgeoning online literature on the economics of legal education and law school graduates’ job prospects is unique because it comes from the inside. In his critique of legal scholarship, this blogger, both tenured and anonymous, confesses that “students at the contemporary law school end up paying enormous amounts of money for something that they aren’t getting, and in many cases wouldn’t want even if it were being provided to them.”

If tenured law professors are averaging about an hour a day over the course of a 250-day work year on preparing for and teaching their classes, what else are they doing with their time? Most ABA-accredited law schools are units within research universities, and research universities usually have formal rules that count teaching and “research and creative work” equally in the tenure and evaluation process. In fact at the most elite universities, and to a lesser extent at the law schools within such universities, these formal rules are routinely ignored. 

This led to changes in hiring practices — changes that were more pronounced at elite schools, but could be seen to lesser extents well down the legal academic Great Chain of Being.  It began to become common to hire entry level faculty with advanced degrees other than a JD, and to pay less attention than ever (not that much had been paid in the past) to whether entry level hires had practiced much law.  More attention was paid to whether candidates had published something, and to whether they supposedly had “scholarly potential.” 

***

Again, all this was much more pronounced the higher one went in the hierarchy, but, in a development that has had enormous economic consequences for the latest generations of law students, a very large number of law schools decided that, if the Harvard Law School was going to start acting more like the Harvard history department, then the Pretty Good Law School in Flyover Country was going to start acting more like the Harvard Law School.

In my previous post, I discussed some of the reasons why so much legal education is both a practical and intellectual waste of time.

I didn’t touch on some related issues, such as the fact that most law faculty have had literally no classroom teaching experience before they become “law professors,” that they get no training or real guidance in regard to what they’re doing in the classroom at any point in their careers, and that many of the traditional methods of law school teaching, in particular cold-calling students in order to require them to participate in a pseudo-Socratic dialogue, are simply idiotic (if research into education methods has established anything, it has proven that fear is a powerful impediment to learning).

Of course some law professors will swear they dedicate far more time to teaching than this. Some of them are even telling the truth (How much this benefits their students is another question, given that ever-more exquisite elaborations of doctrinal niceties soon reach a pedagogical point of sharply diminishing returns).  But others are “dedicating” a good deal less.  Some professors who have taught exactly the same classes for a decade or two do essentially no preparation any more.  They are like the most burnt out teachers at your high school, if you went, as I did, to a middling-quality public school. But with this difference: the most burnt-out teachers at your high school still had to stick around at work for seven or eight hours a day. Also, they didn’t get paid $200,000 (or even quite a bit more) per year. And needless to say you didn’t have pay $50,000 a year for the privilege of being exposed to their talents.

Someone should inscribe the phrase Fake It Till You Make It (in classical Latin naturally) on the façade of Harvard’s fancy new law building – and on that of every law school in America.