I spent a few minutes yesterday searching to see what other lawyers had to say about their area of law (other than criminal), and came upon website after website offering people free legal advice.  Some, like Avvo, named the lawyers who gave of their time, while others “verified” that the answers came from unnamed “legal experts.”

How do I say this nicely?  It was shocking.  It was free, for sure, but much of the “advice” was dead wrong. I mean, horribly wrong. Grossly wrong. Just plain wrong.  How many people are harmed by the free advice they find on the internet?  We’ll never know, but they are most assuredly harmed.

The phenonmenon of free legal advice as a come-on to people who either can’t or won’t pay a lawyer to provide them with reliable, or at least accountable, legal counsel is not only here to stay, but has become overwhelmingly pervasive.  Websites I’ve never heard of are telling folks how to conduct their legal affairs and relationships.  And the nice people who ask questions, or read the questions asked by others, get answers.  And the answers are wrong.

We are harming people, and we need to stop harming people.

From what I saw, there are a few problems that keep reappearing.  By no means does this exhaust the problems of bad legal advice online, but these issues appear over and over.

1.  Not your area of “expertise.”  I put “expertise” in quotation marks because many lawyers are generalists and have no area of expertise. Others have expertise in a particularly niche, maybe even a micro-niche, but just can’t control the urge to stray outside the lines and give advice peculiar to a particular jurisdiction or particular subset of a practice area to issues that are clearly beyond their tiny pond.

You think you can help?  Grow up.  Wise up.  Just because you’re all puffy about your brilliance as a lawyer doesn’t mean that you have anything to offer in areas of law you neither know nor practice.  Yes, your spouse tells you how smart you are.  Your mother is proud of you. Your clients think your the ginchiest.  Who cares?

Let’s talk lawyer to lawyer, a bit of truth. You aren’t spending your time researching your answer.  You know that it’s not going to land you in a malpractice suit or grievance. You know that you’re doing it to promote yourself, and that the poor schmuck on the receiving end isn’t going to know whether your advice is decent or utter crap.  Hell, it’s free and, well, close enough.  And you think you’re right.  Guess what? You’re not.

2.  You’re not yet a lawyer but you play one on the internet.  It’s like a meme (a word best understood by digital natives that older folks can’t quite understand) that young lawyers are every bit as good, knowledgeable and worthy as experienced lawyers.  The only difference is that they couldn’t get a job out of law school, because us old lawyers screwed the whole profession up and left them holding the bag for a couple hundred thou in debt and no place to go every day, so they have to scramble online to buy their next bag of Cheetos.

The old maxim that an old fool is worse than a young fool comes up from time to time.  The anecdote about the old time lawyer who is clueless gets tossed about.  The stories about partners who can’t type out their old emails, or haven’t cracked a casebook in half a century abound.  And to some extent, it’s all true.

Yet this is utter nonsense that betrays self-serving stupidity.  If you’re such a brilliant lawyer two weeks out of law school, how much more brilliant will you be with ten years of experience under your belt?  Oh, but that’s you, right. You’re different. You’re special. You’re not like all those other lawyers, who are wrong and stupid.

Maybe you are brilliant.  Probably not, but let’s massage your child’s ego for a moment.  Do you not think you will be a better lawyer with experience?  Do you not think that those who have experience have gained something from it?  Do you not think there are other lawyers, at least smart if not as brilliant as you, who have more experience and know more than you do?

These experienced lawyers have a depth of understanding of what the law is, how the law works, and how problems are best addressed that you don’t have.  Not because you aren’t brilliant, but because you’ve never actually practiced the law, experienced what works and what doesn’t, seen where seemingly correct advice goes disastrously wrong.

I do not believe that the lawyers who are playing the free advice game have an intention of harming anyone, misleading anyone, giving really awful advice.  There’s no benefit to them in doing so, and most of us have at least a smidgen of conscience that makes us want to help others.  But the road to hell is paved with good intentions.

Stop harming people, even if you don’t mean to.  Stop adding to the stupidity of the internet.  If you do not really know your stuff, if you do not have the experience to know that your very authoritative answer is correct, don’t do it.  So what if you won’t make Level 42 contributor on Avvo, or the $10 some misbegotten “answer” website pays its “experts.”  Do you not care that people are reading your words and believing them?  Do you not care that someone out there is worse for having coming across your advice?

* Correct Answer are not free,

Stories of jurors Googling details during trial or deliberations have become pervasive, as social media has become part of the fabric of our lives.  For every participant in the system, this presents a nightmare, where the limitations of admissibility of evidence and the instruction to base the verdict only on the evidence presented in the courtroom become meaningless.

At  Idealawg, Stephanie West Allen offers Senior District of Colorado Judge John Kane’s thoughts on how to avoid “mistrial by Google.”

The dangers of “mistrial by Google” have been in place for a number of years.  The use of various devices to access the internet is ubiquitous and more than a few mistrials have had to be declared because of such misuse.  I know I had one — and none since— over three years ago.  An instruction at the close of the evidence is not sufficient to enable a jury to refrain from this international obsession. 

It is necessary to dwell on the nature of a trial and the responsibilities of jurors beginning with the voir dire, and instructing before the opening statements, during the taking of testimony and at the close.  I cannot conceive of instructions that do not set forth the reasons for them.  It is also necessary to provide jurors with copies of the instructions at the beginning of the trial, to allow them to take notes, to submit questions and to include an instruction that each juror is responsible for the proper conduct of the other jurors.  The instructions should also advise the jurors that failure to comply, failure to confine deliberations to the evidence adduced at trial and failure to insure one another’s proper conduct can be deemed a contempt of court. 

Even with this “organic” infusion of instructions, it remains essential to prohibit the possession of cell phones and such during court sessions and throughout jury deliberations.  Given the easy access to information for everyone in our society, including jurors, the idea of waiting until the end of the case to present instructions for the first time is patently ludicrous.

Yes, I do believe it and have employed practices followed by post-verdict interviews that confirm my solutions to the problem.  I’d be happy to talk with him or anyone else about this.  “Mistrial by Google” is a symptom of an underlying malaise that is correctable with an appropriate amount of energy and a willingness to try cases other than as they were tried in the reign of Henry IV. 

Don’t be fooled by his “senior” status, as Judge Kane is one of the most forward thinking and aware federal judges on the bench.  There’s nothing to be gained in ignoring or denying popular culture.  Googlers gonna Google, unless someone explains to them up front why they really can’t and shouldn’t. 

It appears that Judge Kane’s methods rely on the very remarkable fact that most jurors truly want to do right.  Whether they have the capacity is another matter, but it’s always remarkable how they desire to be good jurors.  Of course, there are always the “stealth” jurors who have their own agenda, and no plan of adhering to the judge’s instructions, but these jurors can’t be helped anyway and the admonitions of contempt are, hopefully, sufficient to make most of them think twice.

While it may not be a foolproof plan, it’s certainly one that we should know about and advocate for in order to prevent the jury from deciding guilt because Google (or Facebook, or Twitter, or whatever the next cool thing may be) says so.  As Judge Kane says, waiting to deal with the problem until the end of trial is “ludicrous,” and given that social media isn’t always kind to those accused of crimes, it’s certainly in our best interest to make sure that the evidence is limited to what comes through the witness stand.

“Dog bites man” is not news, as that’s what one expects a dog to do.  But dog comforts witness on the stand is another matter, even though that’s what one expects a dog to do as well.  The  New York Times reports of Rosie, described as “the first judicially approved courtroom dog in New York.”

Rosie sat at the feet of a 15-year-old witness while testifying, who alleged that she was raped and impregnated by her father.  A terrible crime, and a traumatic situation.  The teenager kept hugging Rosie throughout her testimony, and was comforted by the dog’s nuzzling.  

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

Testifying is an ordeal for any witness, and that’s what it’s supposed to be.  It’s a hot seat, a place where an accuser is tested under the crucible of cross-examination and confrontation.  While we may well have a soft spot for children (which is usually reflected in a gentler, more circumspect cross, as jurors are offended when it appears that a lawyer is bullying a child witness), their testimony can put a person in prison just as well as anyone else’s.  Indeed, the Salem Witch Trials were all about the word of children.  Children with wild imaginations and malevolent purposes.

It’s no surprise that a dog will bring comfort to a vulnerable witness, That’s one of the things dogs do.  To watch a lovable dog, “man’s best friend,” adorable, as attorneys for both sides conceded Rosie to be, lend her cuteness to the witness is to bolster the witness’ credibility and likability.  Essentially, the dog becomes an unsworn witness.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause .

Yet, this is exactly what the dog shouldn’t do.  While the impetus for allowing a dog into the courtroom is to bring a measure of comfort to a vulnerable witness so as not to add to the trauma endured, it is not to have the dog become a prop in the passion play.  But dogs being dogs, and jurors being people, it’s impossible for them not to notice how the dog’s devotion is given to the witness.  Even dog-haters are moved by this display.

And then there’s the problem of the dog doing its job too well.

At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose. Mr. Tohom was convicted and sentenced to 25 years to life.

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted.  Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question. 

But we must feel similarly bad for the person convicted on erroneous testimony.  We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised.  Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

And that, a funny line though it is, strikes at the heart of the problem.  In the courtroom, we can’t cross-examine the dog.

Until a person is convicted, he is not guilty of a crime, and the witnesses against him are not his victims.  Sure, our sense of fairness, rightness and empathy tells us that this a legalistic ideal, and pales in comparison to the trauma suffered by a child.  No one, least of all me, is immune to the feelings of a child.  But any trauma endured by a witness must be viewed through the prism of the purpose of a trial. 

The child can (and most assuredly will) be prepared for the trauma, and can be given therapy afterward to dissipate the discomfort of being challenged on the witness stand.  Life has trauma, some of which can’t be helped, but which can be addressed and comforted with appropriate care. 

We cannot, however, ignore the reality that darling children are sometimes wrong, and sometimes lie, when they give testimony.  The purpose of cross-examination is to ferret out such testimony, and anything that undermines the purpose of confrontation makes no sense in a courtroom.

As  wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.

And no one has yet suggested that the defendant be allowed a cute, adorable, slobbering dog to sit at his feet, to lend his loving dog-eyes to the warmth of the accused, just in case he’s the person suffering trauma in that courtroom.

Edmond Demiraj thought he had a deal.  The government came to him and asked him to testify against a notorious Albanian mobster.  In return, the government promised to protect Demiraj and his family. Not a great deal, but a deal.

Via Liptak in his Sidebar column :

The two sides made a deal, Mr. Demiraj said. In exchange for his testimony, he and his family would be kept safe.

But [Bill] Bedini was allowed to post bail and promptly fled to Albania. With their witness no longer of value to them, federal authorities deported Mr. Demiraj, also to Albania.

Mr. Bedini was waiting. He kidnapped, beat and shot Mr. Demiraj, the bullet just missing his kidneys.

Mr. Bedini also went after members of Mr. Demiraj’s family, kidnapping two of his nieces and forcing them into prostitution in Italy. “This was payback to your Uncle Edmond for when I was in the United States,” he said as he beat the women, who were 19 and 21.

While Demiraj was ready, willing and able to hold up his end of the deal, the government was another story.  Clearly, it was Demiraj’s fault that Bedini absconded.  He put his butt on the line in reliance on the government’s assurances that they would allow, Demiraj, here without the proper documentation, to stay in the land of plenty and be protected from retribution. 

But that was when they needed him.  When the deal is no longer a good one for the government, then there’s no longer a deal.  He was able to return to the United States lawfully, and is now fighting to prevent the deportation of his wife and son.

Mr. Demiraj and his nieces are now lawfully in the United States. He owns a small painting company near Houston. But the decision in January also brought bad news for Mr. Demiraj. It ordered the deportation of his wife, Rodina, and teenage son, Rediol, who have both lived in the United States since they entered the country unlawfully in 2000. (The two youngest Demiraj children were born in the United States.)

The idea that members of his family will be forced to return to Albania terrifies Mr. Demiraj.

“Bill Bedini is a dangerous person,” Mr. Demiraj said on the phone the other day, in halting English. “For sure he’s going to kill my son. My wife, maybe he’s going to kill her and maybe he’s going to send her to prostitution.”

The government does not really dispute any of this.

And, wait for it, this doesn’t end the problem.  In fact, the Fifth Circuit gave the Demiraj situation its deepest consideration, before  affirming the order denying asylum and that his wife and son be deported.

In a divided decision, a three-judge panel of the federal appeals court in New Orleans agreed. It is true, they said, that a federal law says asylum may be granted when an alien fears persecution “on account of” family membership.

But the judges in the majority added that Mr. Demiraj’s wife and teenage son did not qualify. Their reasoning takes a minute to grasp.

“Mrs. Demiraj is at risk because Bedini seeks to hurt Mr. Demiraj by hurting her — not because he has a generalized desire to hurt the Demiraj family as such,” Judge Catharina Haynes wrote. “Mrs. Demiraj would not be any safer in Albania if she divorced Mr. Demiraj and renounced membership in the family, nor would she be any safer if she were Mr. Demiraj’s girlfriend of many years rather than his wife.”

It takes a bit of thought to appreciate the rationale.  Because the harm that would most certainly befall Mrs. Demiraj should she be returned to Albania would happen regardless as payback for Demiraj being a government witness against Bedini, it’s not the sort of harm that would be covered by a request for asylum.  Sure, no one doubts that Bedini will go after her, perhaps kill Demiraj’s wife and son, maybe just torture them, but that’s because Demiraj agreed to help the government.  We can’t just give asylum to anybody, you know.

But let’s not forget how this “lurid” situation arose, because a guy made a deal with our government.  What would it have cost the government to honor it’s bargain, to allow Demiraj and his family to remain here and be safe?  It’s not like he would be the only person to have remained in the United States whose basis was a bit sketchy, and we’ve got enough room here that he wouldn’t be stealing air from good Americans.

And yet, nobody seems terribly concerned that the situation that put a bullet in Demiraj’s gut was created by a request from our very own government, and his silly Albanian naivete that the United States of America would honor its obligations, especially when lives were very much at stake.

There are prosecutors who keep their word.  There are courts that hold the government to its deals, even when prosecutors decide that they don’t have to keep their word.  But when they don’t, be ready for that bullet.  Or say good-bye to your wife and son, because they’re going to pay for your trusting the government.  And you can’t count on anybody, whether prosecutor or judge, to save them.

The old KitchenAid refrigerator went on the fritz while I was in Reno in the beginning of July.  Dr. SJ didn’t want to tell me at first, knowing that I would rail about the shelf life of appliances, and called a repairman to fix it in the hope that I would never know. 

For a $69 fee to show up, he told her it was broken and to get a new fridge.  It was 13 years old, well past the useful life of a refrigerator these days.  The words “consumer” and “durable,” he suggested, should no longer be used in the same sentence.

When I returned, we went fridge shopping.  Due to a particularly stupid move on my part when I had my kitchen restored years ago, the space in my cabinets within which the fridge was to fit was 42 inches, making it something of an oddball.  The options were limited, and as it turned out, guess what brand made a refrigerator to fit?  Of course, KitchenAid.

It wasn’t an inexpensive refrigerator.  I asked the woman from Plesser’s Appliances why this built-in refrigerator should cost four times what a normal refrigerator costs.  Did it refrigerate my food better?  Hah, she laughed. I laughed. I knew I was screwed.  I just didn’t know why yet.

When the new KitchenAid refrigerator arrived, it was a monumental pain to get into the house.  But the nice fellows who installed it worked very hard, and managed to do the job.  I gave them a $50 tip, as they seemed like such nice young men.  They thanked me and left, with the admonition that it would take about 24 hours to settle down to the job of refrigerating.

A couple hours later, I noticed the top of the fridge, where the compressor sat, was burning hot, far too hot to touch.  This didn’t seem right, but I was told it would take 24 hours for the fridge to get to normal, so I resolved to wait.  The next day, a few things became very clear.  The top was still burning hot, as was the mullion between the freezer and refrigerator compartments, the refrigerator was cool at 44 degrees, but not a proper 37, and the freezer was varying between excessive freezing and not cold enough. 

I called Plesser’s, the store from which I purchased the fridge, but nobody answered the phone and I wanted an answer rather than to leave a message.  So I called KitchenAid customer support, thinking that someone there could tell me whether this was a problem (as in causing my house to burn down) or just some sort of strange acclimation period.  The girl at the KitchenAid support line had no clue, but immediately arranged for a technician to come.  This was on a Friday, and the tech would come the following Monday between 8 am and 5 pm.  I asked her if my house would burn down in the interim, and she told me she didn’t think so. 

The tech came and told me, “uh oh, this isn’t supposed to happen.”  He explained that the fridge needed a control board, but that KitchenAid would only authorize a “thermistor” because they don’t provide expensive parts until after a cheaper part is tried and fails.  So I got hold of a woman at Plesser’s (after circumventing the “leave a message” at its customer support extension) and made clear that I when I paid for a brand-new refrigerator, I agreed to pay the price, but not make myself available for however many days the KitchenAid gods demanded. 

The woman got back to me after speaking with her “factory rep,” telling me they would overnight the needed control panel.  The next day, the thermistor arrived instead, assuring that it would take at least three days of my life, minimum, for the fix, assuming that the control board would in fact fix my defective refrigerator.  

Mind you, I made clear to the Plesser’s gal that I did not purchase a defective refrigerator, and did not accept the defective refrigerator delivered as satisfying their end of the deal.  She couldn’t grasp the concept.  “The refridgerator is under the manufacturer’s warranty,” she explained officially.  There was no room in her understanding for the idea that they first had to deliver a brand new, non-defective refridgerator.

Long story short, neither the thermistor nor control boardt fixed the problems.  I spoke with the tech, a very nice guy, but he was fresh out of fixes.  It’s not that he wasn’t happy to help, no matter how many days of my life were needed for a highly paid tech to stare at the refrigerator and turn my brand new machine into a refurbished model, but that he had no clue what part to replace next.  I told Charlie the tech guy that I liked him very much, but really couldn’t dedicate the rest of my life to hanging out with him in my kitchen. 

As an aside, the techs no longer provide customers with a receipt for repair, doing everything on a laptop computer.  I called Metro Factory service to get copies of the  tech’s repair tickets, but they were never sent.  As if they had an idea that this was going to be a problem, and they weren’t going to bite the KitchenAid hand that feeds them.  After all, the only people who benefit from failure are the repair people, and why do anything to upset either their benefactors or their great gig?

The lines were drawn when I received a call from the KitchenAid factory rep, Kaneta, who informed me that she had solved the problem:  the refrigerator was fine; there was nothing to fix.  The problem, she explained, wasn’t with the refrigerator at all, but that the ambient temperature of my house didn’t suit the needs of the refrigerator.  If I wanted the refrigerator to work properly, all I needed to do was change my home.  You can’t make this stuff up.

Then came the email from Plesser’s:

Our rep at Kitchenaid has informed me that she spoke with you in regards to the issues you are having with your Kitchenaid refrigerator.  Based on the information you gave her along with the service reports supplied by Metro Factory service, she determined that there is nothing wrong with the refrigerator at this time.  She noted that it is normal for the compressor and other components to get hot to the touch when running.  She also stated that the freezer temperature is affected by the temperature of the home.  With this, she concluded that Kitchenaid cannot exchange your unit.  I am very sorry for any inconvenience this may have caused.

The irony is that Plesser’s did nothing more than sell what KitchenAid built, though the price for making a profit is the responsibility of curing a defective appliance.  But Plesser’s wasn’t going to take a hit, and if KitchenAid said the unit worked fine, then there was nothing more than could do.  So what if the temp in the fridge compartment was at 44 degrees, when the New York State Health Department says 40 is highest it should be for safe food.  Can we blame the fridge for not being a, well, fridge?

Plesser’s didn’t seem to get the idea that here I was, with a defective but very expensive refrigerator sitting in my kitchen that failed to do the basic and clear job one demands of a refrigerator.  I sought only one thing, that the defective refrigerator delivered be replaced by one that wasn’t defective.  And if they refused to do so, did they suspect I would shrug and spend the next decade staring at a defective refrigerator?

And you wonder why silly cases end up in court?  But then, I’m a lawyer and the option of suing is no big deal.  For those who aren’t lawyers, have paid a ridiculous amount for a refrigerator, been constrained to suffer days of their lives lost and speaking to a grocery clerk like Kaneta and ending up being told to live with a defective fridge, the idea of having to sue isn’t a great resolution.

There are commercials on television for KitchenAid products that show their wonders and the company’s warm and fuzzy love of the nice folks who buy their products.  Maybe if they spent less on branding and used the money to deliver a product that worked?

Via Grits for Breakfast, it looks like Tulsa, Oklahoma has some problems.

Brandon McFadden, 34, detailed for prosecutors his criminal activity, mostly involving Officer Jeff Henderson but including Officers Frank Khalil and Sean Larkin. He also said that Henderson made up information to obtain search warrants.

McFadden stole drugs, money, used a straw “informant” to lie on search warrant applications.  He was, in short, a criminal with the power of the Bureau of Alcohol, Tobacco and Firearms behind him.  ATF has always held a special please in my heart, as I’ve never had a defendant arrested by ATF who didn’t appear for arraignment beaten.  And I never had a magistrate who didn’t accept the agents excuse that they were just protecting themselves when the defendant’s face attacked their guns, or the asphalt, or some similarly hard surface.

But McFadden, working with the Tulsa Police, had an “excuse.”

“It cost me everything,” he said of his criminal activity. “It didn’t happen overnight. I can tell you that. It was a gradual thing. One bad decision led to another, and I ended up in a situation completely over my head.

“At first, it was peer pressure in accepting the money the first time. From there, it turned into greed. And for a time, that’s the thing to do because that is what all these officers were doing, and I didn’t see a way out,” McFadden said.

He said he had tried to tell his supervisors about corrupt police activity but was “shut down pretty quickly.”

No, it’s not much of an excuse, and in small respects, doesn’t differ from the way many slide down into a life of crime, but they don’t teach agents how to make up excuses for crime at the academy, just how to justify a search and beating.  Of course, McFadden is completely full of it.  His supervisors “shut down” his stories of police corruption?  Did he not know how to find the number for the FBI?  Or DOJ inspector general in Washington?  Or any one of a dozen other places he could have gone to purge himself of his guilt and loathing?  Or maybe he’s just making it up.  Maybe he’s still just making up stories, this time to make himself seem less of a turd.

It cost him everything?  How sad.  What did it cost the people he hurt or falsely imprisoned. What about the people he beat when they wouldn’t give up the money he wanted to steal?

It was peer pressure? Ah, yes.  The bain of teenagers everywhere.  All the other cops are corrupt, so what else could I do?

There is a fundamental difference between some ordinary joe on the street engaging in crime and a law enforcement agent do something similar.  So much faith is placed in the hands of these human being that we hand them a gun and shield, and create a legal sphere around them that allows them to engage in a huge realm of conduct that would put any mere mortal in prison for life.  More than this, their word is beyond reproach, the system trusting them, defaulting to accepting their integrity unless we have a videotape and a few eyewitness priests saying otherwise.  The harm done by a beating is to one man.  The harm done by a lie renders the system a farce.

While working with Henderson, McFadden said he was told about informant Rochelle Martin, known as “O-girl” or “Shell.” Prosecutors have said that Henderson obtained search warrants with bogus information attributed to Martin.

“I learned (Henderson) was using her to sell drugs he obtained from search warrants,” he testified. “He would use her as a throw-down name for search warrants. … I knew they were close friends and allies. It was a loyalty deal. If needed, he could get her to do what was needed.”

McFadden testified that Henderson talked about using dead informants on search warrant affidavits so that if questions arose about the validity of the information, the informant could not be produced.

How crazy would it be if it turned out that federal agents, knowing that whatever they claims would be blindly accepted by an issuing magistrate, just made up wild stories, complete lies, and everybody from the U.S. Attorney to the District Court judge just ate it up.  Not a soul in the government’s employ could even imagine that the story was a wholesale fabrication, and certainly there was no argument to be offered against what this honored and trusted federal agent had to say. 

And if we can believe anything this mutt says, corruption is pervasive in Tulsa.  And if it’s pervasive in Tulsa, what makes you think it doesn’t exist anywhere else? 

But federal agents are above corruption.  They’re above greed.  They would never lie because they are all honorable men who would never dirty their shield and betray their trusted brothers.  Except McFadden, the only agents who isn’t special. 

The Democrats are unprincipled, unfocused and spineless.

The Republicans are unprincipled, focused and Machiavellian.

The Tea Party is principled, focused and cluelessly simplistic.

Outlier ideologies may have their points, but offer no panacea.  Religious doctrine hasn’t worked for churches, no less secular governance.

It’s a truism that we get the government we deserve.  We are not exceptional.

This is not going to end well.

The Trial Warrior, Nino Pribetic, unique among Canadian blawgers (eh?) in his criticism of self-aggrandizement and the adoration of technology as the weapon of choice for deception, raised the specter of the ghost.  He provides a summary of the current state of ghostwriting on the internet, offering the example of Janet Ellen Raasch.

If you don’t have any professional or ethical concerns with legal  ghostwriting or ghostblawging and are too busy to spend 15 minutes of your precious time to write your own original posts, then I suppose you have already consulted with Janet Ellen Raasch at Constant Content.  According to the About Page:

About

A constant stream of good content – with your name on it and appearing in skillfully targeted electronic and print media – is one of the most effective ways to enhance your reputation as a professional — and get new business.

Janet Ellen Raasch is an experienced independent writer who helps professional service providers reach — and persuade — their ideal clients through creation of by-lined content for the Internet, and copy for traditional print media.

In particular, Raasch produces content and copy for lawyers, law firms, consultants to the legal industry and legal organizations (including ABA, CBA, LMA and ALA). Because she has been an in-house legal marketing director as well as a consultant, her content and copy is written with your unique marketing agenda in mind. She is one of the best-known independent writers in this market segment.

Janet Ellen Raasch is an accomplished journalist who has written and ghostwritten more than 1,000 articles for electronic and print publication (see “writing samples”). In addition, she has written and ghostwritten more than a dozen books and numerous white papers (see “writing samples”). She has created keyword-rich content for more than a dozen Web sites.

Wow! Over 1,000 ghostwritten articles. It seems to me that ghostwriting and ghostblawging are symptomatic of what Scott Greenfield has referred to as  a ‘race-to-the-bottom’ in the legal profession.

This made me wonder whether we’re point the fickle finger of shame at the wrong party?  Underlying the concern Nino’s expresses, and which I and others join him in when decrying the race to the bottom, there are two discrete groups involved.  On the one hand, there are the marketers, the social media gurus, the techno cheerleaders, the ghostwriters, all the various players who have become part of the cottage industry to “teach” lawyers how to gain overnight wealth and prestige on the internet, at the cost of a few thousand dollars and their integrity.

On the other hand, there are the lawyers who turn to these people to make them rich and famous.

For quite a while, I’ve had unpleasant thoughts about the former group, enticing lawyers with their empty rhetoric and sweet jargon to come to the dark side.  They are the sirens of the internet, calling to lawyers to steer their practices to the rocks.  As much as we debunk their empty promises, and reveal them as failures to amass wealth and prestige for their own account, so how can you expect them to teach you to do what they’ve never done, lawyers are still drawn to them.

But what do they do wrong?  Lawyers are hungry and desperate, seemingly incapable of getting clients on their own and clueless about how to spread the word that they are experienced, aggressive and caring, just like every other hungry lawyer.  There is a need.  Needs want to be filled.  Is it wrong to fill it?

That those who seek to make their fortune by sucking the blood of hungry lawyers and urging them to walk the boulevard in hot pants offer an unsavory alternative to the time-tested method of hard work and integrity (or as a judge recently told me, caring) is nothing more than salesmanship.  Marketers gonna market.

What about the responsibility of lawyers to not play the fool?  As lawyers, we are supposed to have the capacity to parse words for meaning.  Shouldn’t this skill enable us to read the silly language of marketers, the stringing together of words that don’t connect, the use of nouns as verbs and adjectives that mean nothing, and realize that they say nothing?  Sure, “new and improved” worked for years selling laundry detergent.  Calling soap by its chemical name made it exciting and new.  But we’ve gotten wise to the ways of the market, right?

It often seems that there’s a dichotomy to be drawn, between the experienced lawyers, the big firms, the people who have no excuse whatsoever for being led like lambs to the slaughter, for falling prey to the siren’s song, and those who are still young and naive.  The newbies enter this suddenly jobless world determined not to shame their mothers and be that one in a hundred thousand million success story.  These are the overachievers, the ones who will not sit on the couch in the basement whining about the misery of becoming a lawyer.  They will win.

But how?

Along with the sadness of their circumstances, they are the digital natives for whom technology and the internet provide all answers.  They used wikipedia to write all their papers, even though they googled more legitimate sources to put in the end notes.  The truth is, they know that every answer can be found online, and they think us old-timers are so technically incompetent that we don’t know how they manage to be so brilliant.

And the truth is they’re right.  It’s all here.  The drawback is that the truth is hidden among the weeds, the lies, the nonsense and the craziness.  It’s here, but they have to find it.  They have to be able to figure out what is real and what is not.  Adding to the problem is that the real stuff tends to be much harder to digest and spit out, while the scams are sweet and easy.  Worse still, the real presents itself in unpleasant ways, while the scams are warm and loving, embracing all who stumble upon them in the warm glow of love.  That, my friends, is good marketing.

Guys like Nino put their butts on the line to save the young lawyers from themselves, as the harm they can do in the early, naive years of their practice will surely haunt them as they mature.  At the same time, they call out the marketers, exposing them as today’s version of the ad-men who came up with new and improved laundry detergent, though new meant a smaller box and improved referred to the company’s profits.

But we bought the detergent.  And I’m told that clients hire the brand new lawyers who are “experienced, aggressive and caring.”  And nobody seems to care that they’re selling and buying lies as long as it works.

Texas has a barratry problem.  Not that it’s alone, but its problem is sufficiently troubling that it’s trying to do something about it.  For those unaware, barratry is, inter alia, the solicitation of legal representation, often referred to as ambulance chasing. 

Mark Bennett, no fan of barratry, notes a pending change in Texas law that creates a civil cause of action for barratry by a person solicited, who did not succumb to the lure, which provides for damages:

(1) a penalty in the amount of $10,000; (2) actual damages caused by the prohibited conduct; and (3) reasonable and necessary attorney’s fees.

The actual damages caused would be de minimus, if anything, but the penalty of $10,000 plus attorney’s fees is some serious money.

Walter Olson wrote about a major league fax spammer could be bankrupted by a $400 million class action under a class action by the imposition of a $500 penalty per fax (which could potentially be trebled, I might add).  Again, the actual damages might be the electric, piece of paper and opportunity cost of thirty seconds of fax time.

The forfeiture of assets, home, bank account, car, is characterized as civil.  So is the incarceration of sex offenders who have completed their sentence but are deemed too dangerous to be let out.  The inclusion of a name on a registry, thus assuring that a person carries the stigma of perpetual hatred plus the inability to live or work like a normal person, is civil.  Banishment from the land based upon the conviction of an aggravated felony is civil. 

The distinction is that punishments, ranging from fines to loss of property and rights to imprisonment, by being characterized by legislators as “civil” and by the courts’ willing acquiescence in this scheme, have created a secondary criminal law, often enforced privately or by alternative government agencies, that evade the protections afforded those facing criminal sanctions.  No lawyer.  The burden of proof falls from beyond a reasonable doubt to as low as probable cause in some cases.  No right to confront witnesses, and the thinnest of due process.

Bennett characterizes this as “overcivilization.”

Where overcriminalization is characterized by draconian penalties for easy-to-prove technical violations of a sort that is traditionally civil, overcivilization is characterized by relaxed rules for exacting penalties for offenses that are traditionally criminal.

In some respects, this presents a greater systemic problem than overcriminalization, which (just to be clear) goes far beyond the mere draconian penalties for hypertechnical violations, but extends to criminalizing a mindlessly broad swathe of otherwise innocent conduct in order to “fix” a specific but extremely rare problem by laws that have far-ranging unintended consequences.

What’s curious about the phenomenon of overcivilization is that it involves people who society loves to hate, such as ambulance chasing lawyers or junk faxers.  There will be no groundswell of either support or sympathy for such types, and most of us would be all too happy to be first on line to give them a good, hard smack.  We don’t care for the things they do.

But this isn’t about liking them, or approving of their conduct.  It’s about the abuse of the “legal fiction” of calling something “civil” to circumvent the bundle of rights that is encompassed in a criminal prosecution.  If the government wants to punish conduct it deems bad, we can debate whether it’s bad enough to be worthy of criminalization, or whether the law is overbroad or unnecessary, but at least those accused and prosecuted are assured of certain rights.  Not those who are subject to criminal punishment, but whose wrongs are called civil.

The courts are at the forefront of this scheme, willingly relying on the legislative sham of allowing the prosecution to be conducted privately, or such legal fiction as in rem forfeitures, where the property (rather than the property owner) offends the sovereign.  Years ago, there was a popular maxim that “the law abhors a forfeiture.” 

Today, the law loves a forfeiture, and enables it in a process that not only facilitates it in a way that essentially precludes opposition, but does so in a circular action, depriving a person of the assets needed to defend his property (and often his freedom, as they tend to happen in conjunction with a criminal proceeding), and then justifying the deprivation by the post hoc forfeiture and conviction.  You see, he was guilty, so the government was right to first seize his assets and deny him the ability to defend, as proved by the fact that he was later convicted.  A sweet circle.

This could all be remedied in a snap, by distinguishing criminal from civil based upon the nature of the penalty/damages imposed.  Very simply, a criminal sanction is one that results in a fine/penalty unrelated to actual damage suffered, imprisonment, banishment or forfeiture, the same punishments imposed for the conviction for a crime.

Significantly, the legitimacy of the imposition of these sanctions is based upon the application of the legitimate sentencing principles rather than the anger and payback felt by jurors or the gut feeling of a judge.  Imagine, for the sake of making a point by a ridiculously extreme example, that the first instance of barratry resulted in a $10,000 fine, but failed to make it’s point and the perpetrator continued to solicit clients.  A second suit was shrugged off as well, with another $10,000 paid by the laughing lawyer. 

What if the Texas law provided as a recourse for the third time a lawyer was found to have engaged in barratry a “civil execution.”  That’s right, put the sucker to death, as he clearly hasn’t learned his lesson and, well, this is Texas, where life is cheap and barbecue is a religion.  It’s completely absurd, right?  But as Bennett notes:

Barratry may be a special case: those who commit it often have more assets than the average criminal, and they must commit it in the view of at least one non-party (the solicited person).

Since the whole point of the law is to put a stop to barratry, and if the lesser sanctions don’t do the trick, then why not go all in?  After all, it’s only a civil execution, and nobody really likes these guys anyway.

I’ve been called prolific for posting as much as I do, with people telling me that I write more than they have time to read.  Yet I get a seemingly unending stream of emails from people who are putative bloggers telling me that they want to write, but can’t seem to find anything to write about. 

Are you nuts?

Essentially every day, I leave at least a half dozen posts on the table.  Between the law and the world, there is no end of stories, issues, concerns that pique my interest.  Cognito ergo blawg, baby.  Do these things not cause you to think?  Are your synapses not firing? 

The corollary is that someone else, occasionally me, has already written about a case or subject, and there’s nothing left to say.  I call bullshit.  It’s unlikely that anyone agrees with me about everything, if indeed they agree with me about much of anything.  I hear all the time that I’m wrong, or worse.  There’s plenty to say, a never-ending stream of things to say.

The problem isn’t that there is nothing to write about, so stop kidding yourself and fabricating a justification for your failure to sit down at a keyboard and post.  Oh no, the problem isn’t lack of meat.  It’s lack of will.

Granted, I probably type faster than most of you, which allows me to crank out posts pretty quickly.  But it’s not finger speed that prompts me to write.  It’s that the world is filled with things happening the give rise to thoughts the want to come out.  If you have no thoughts that demand expression, then you have no business blogging.  Contrary to those who promote blogging for purpose other than the compulsion to say something, there’s little worse than a bunch of words on a screen that demonstrate the absence of thought.  If anything, the point learned from such posts is that the writer is either brain dead or gutless, neither of which is a particularly good message.

For those who have no thoughts floating about their head, there’s nothing I can offer to help.  When there’s nothing happening, it’s a good time to step away from the keyboard and enjoy the morning cartoons or perhaps a fine GMA interview asking how the parents of a raped and murdered child feel about it.

But I suspect most of you have thoughts, probably lots of them.  The problem isn’t that your you’re thick as a brick, but that you’re afraid of saying something that might be construed as having an opinion.  You want universal approval and validation, but fear there’s someone out there who might disagree with you.  You want people to think you’re brilliant, but fear someone out there will tell you you’re wrong.  You want people to hire you, but fear someone will read your opinion and proclaim, “I would never retain a lawyer who thinks that.”  You may be sitting in front of a keyboard, but your psyche is quivering in a corner, scared to death that you will be revealed as a fool.

Grow a pair.  Take a chance. Stand for something.

Even if it turns out you are stupid, or crazy, or have ideas contrary to what thoughtful people think, the alternative to taking a chance is to be one of the walking dead.  Consider all the people who spend their days alone in their rooms thinking to themselves that someone is wrong on the internet, in court, in life, but never having the guts to write a blog post saying so.  They don’t exist.  Do you exist?

I read other blawgs.  I read media stories.  I see that the many people I follow on twitter are interested in.  I see what I’m interested in.  And by the end of the day, I typically find myself with a list of things I have thoughts about.  Because I do my writing in the early mornings, a particularly hot, controversial issue that arises at the start of the work day will be the subject of a hundred blawg posts before I get a chance to type a word.  So what? 

It’s a big internet.  There’s enough bandwidth for one more post.  And if everyone is played out on a subject, they won’t read it.  The world will not come to an end.  No blawger can make others care what he writes, or force them to read it.  If that’s your worry, then you’re missing the point of this exercise.  Write what moves you, and others will read it if they want, or not. You can’t control anyone else. You aren’t responsible for anyone else. But you are responsible for you.

Stop saying that there’s nothing to write.  If you don’t want to write, don’t write.  If you have no thoughts, don’t write.  If you wet your pants just thinking that someone may call you a mean name for what you think, don’t write.  But there is so much to write about that I could sit at a computer for hours and keep pecking away. 

Let’s be real and stop blaming the world for your inability to put post to screen. If anything, there’s way too much to write about.  But if you don’t have the brains or guts to do it, then turn on the TV and enjoy your Cheetos.  The blawgosphere isn’t the right place for you.


And for those of you who think that blawging is a really great way to brand yourself, here’s the best lesson I can offer.