Imagine what would happen if prosecutors and law enforcement used Chaos Theory to justify jurisdiction?  Nothing that happened, anywhere, would every be beyond the scope of American law, which is how Preet Bharara’s Southern District of New York has claimed jurisdiction over the rest of the world.

From the New York Times :

It was as classic a sting operation as any that have unfolded on Manhattan’s streets: a government cooperator offered a fictitious deal, and baited a suspect into agreeing to participate in illegal activity.

But in this instance, the target was Viktor Bout, a reputed arms trafficker who lived in Moscow; the purported deal involved selling arms to Colombian terrorists; and the sting involved meetings in the Netherlands Antilles, Romania, Denmark and, finally, Thailand, where Mr. Bout was lured, arrested and eventually extradited to the United States.

About the only place not involved in the alleged offense was here.  But that didn’t stop our government from deciding that bad things elsewhere were subject to our laws.

Preet Bharara, who currently has that role, said the aggressive approach had become necessary in the post-9/11 era. “As crime has gone global and national security threats are global,” he said, “in my view the long arm of the law has to get even longer.”

“We can’t wait until bombs are going off,” he added.

Can you feel the breeze of the butterfly’s wings?  The new-old saw, 9/11 changed everything, is still very much alive and justifying our running around the world to impose our law on those who could conceivably pose a threat.  The only limitation is cost and manpower, with territorial constraints in our post-9/11 world no longer of any consequence.

The international cases have not been without complications. Defense lawyers have criticized the stings, arguing in court that they “manufacture jurisdiction” in cases in which it would not otherwise exist and pursue people unfairly.

“I find it profoundly troubling that U.S. agents are spending their time setting up cases against individuals who do not represent actual threats to the United States,” said Melinda Sarafa, a lawyer for a Lebanese man brought from Honduras in a 2009 narco-terrorism sting.

Curiously, the issue has already become so muddied that the question raised by Sarafa is whether the defendant poses as “actual threat to the United States.”  We’re already beyond the point where a mere threat, actual or theoretical, is itself insufficient.  How did we leap over the concept of territorial harm within the confines of our beautiful shores to the point of distant threat?  And already jurisdiction is supplied by way of rhetoric, connecting make believe dots that could arguably happen.  It’s as if the courts deferred the jurisdiction challenge to  Judy Tenuta (it could happen!).

But if it protects Americans from the threat of harm by global terrorism and crime, what’s the problem?  It’s not like these are otherwise innocent guys, right?

What is happening is the conflation of American foreign policy and criminal law.  The government has decided that our law has become the law of the world, thus justifying the long arm of the law to stretch anywhere it wants to go.  If the Ruskies won’t clean up an arms dealer in Moscow, then we are entitled to go in and do it ourselves.  In the old days, we would use an army to invade the foreign land and impose our will.  Today, we lure them to a dark room, “arrest” them on foreign soil and spirit them to Manhattan in the dark of night to be prosecuted for the crime that might have happened in Manhattan, if only it had anything whatsoever to do with it.  But it could, if one squints, turns his head sideways and pretends that the butterfly is flapping its wings.

So what’s the problem with making the world a little safer?

Sabrina Shroff, a lawyer for a West African narcotics-trafficking suspect arrested in a case in which drug agency informers posed as Taliban representatives, said, “It would anger our citizens if Americans were set up, and ensnared, and tried in a foreign country.”

American Jingoes tend to forget that other countries, silly though this may seem, harbor the belief that they are entitled to enact laws too.  The French get to decide that it’s a crime to mix stripes with polka dots, and the Syrians get to decide that disparaging Mohammed deserves death.  To the fellow in Idaho, this doesn’t mean much, and he can dress any way he pleases or say mean things on the internet about the prophet of Islam.

What if a foreign law enforcement agent snatched this guy in Idaho.  Absurd, right?  And yet the same in kind to what we’ve decided is our right on other nation’s soil.  While some might question the seriousness of the offense, noting that we’re rounding up really bad guys, terrorists and such, from Red Square, and hardly comparable to our Idahoan talking trash about some outlier religion (to Americans), the sensibilities of those in other countries could see things differently. 

Sure, it’s hard to imagine that the rest of the world doesn’t abide by the Judeo-Christian ethic, or our laws and justification for them, but Americans have long struggled with the notion that we’re right and anyone who sees things differently is just plain wrong.

As these prosecutions out of the Southern District of New York demonstrate, we’re already well down the road of being the self-proclaimed world police, using our Super Power might to decide what constitutes a crime no matter where it happens and how tenuous its connection to us.  It’s not that lawyers haven’t challenged the jurisdiction of the United States to kidnap and prosecute people who have never stepped foot on American soil. 

It’s just that the courts have swallowed Chaos Theory whole, and are only to happen to accept jurisdiction based on some extended theory of how the  butterfly’s wings flapping in the China Sea will result in death and destruction on the streets of Manhattan.  In the Southern District of the World, that’s all it takes for jurisdiction.

He served four terms as Governor of Alabama.  He ran for president four times, three as a Democrat. In 1972, he was shot and paralyzed, living out the rest of his life in a wheelchair.  He was best known as a southern populist, standing firmly against desegregation.  But he never did a blawg review. Loser.

The other George Wallace writes about insurance law at Declarations and Exclusions.  If you’re fascinated by insurance law (and who’s not), it’s the place to go.  The other George Wallace has a personal blog, A Fool in the Forest, which will only be of interest to readers who think.  The former hosts  Blawg Review #304 this week.  The latter will host next week’s blawg review.  I’m taking a leap here, but I predict it will be called Blawg Review #305.

In anticipation, the other George Wallace posts a bleg.

Who am I kidding?  I am next week’s Blawg Review host, at my personal/cultural blog,  a fool in the forest.  For reasons that will become clear in good time, I am particularly interested for the next edition in blog posts that examine, or that exemplify, Things That the Law, or Lawyers, Could Do Without.  Your submissions and suggestions, early and often but mostly early  [hint hint, nudge nudge], will be welcome and appreciated.

Only because I think the other George Wallace is one of the smartest, most erudite lawyers on the internet, I want to start the ball rolling.

Lawyers could do without BMWs.  Porsches too, but they’re mainly for middle-aged doctors (not the Boxter, but the 911).

What’s the problem with BMWs?  Aside from the dumbing down when they started putting in cupholders to compete with the Japanese and minivans, they cause envy.  The lawyer driving around in his K-car is forced to park next to the BMW in the lawyer’s parking lot at the courthouse and feels diminished.  His self-esteem is shot.  He walks toward the magnetometer with shoulders slumped, already defeated. He feels . . . inadequate.

Despite his best efforts, a scheme begins to form in his endorphin deprived mind.  If only he could generate fear.  Fear and loathing.  It works so well for the government. It got George Wallace elected four times.  Fear and loathing are powerful, an aphrodisiac.  And he could be the solution, the messiah of fear and loathing.

It wouldn’t take much.  A tweak here and there.  A carefully crafted campaign to entice those who fear and loathe to come to him, begging him to be their savior.  Not too greedy.  If he gets too greedy, they will struggle and may well let thoughts and ideas overcome their fear and loathing.  No, never too greedy.  Just greedy enough.

It wouldn’t be entirely a lie.  Of course, taking small amounts from the many who fear and loathe adds up, enough to not only cover the lease, but gas and insurance as well.  And they would never know of his nefarious plan to persuade them that they’ve tried their best, that it’s a grand conspiracy against them propelling them to accede to the power and might of the evil government.  It will be easy, as they fear and loathe, inclined to believe from the outset.  They will sigh.  Some will cry.  But they will pay and never know that it was all part of his own grand scheme.

And when he pulls into that parking lot with his shiny BMW, tinted windows concealing the cupholders, his pride will blind him to the scared look of those led out of the courtroom in cuffs to serve their time, their legal bill having been paid in full.

No, lawyers can do without BMWs.

Does that pretty much cover it?

When the going gets tough, the tough get going.

— Joseph P. Kennedy (1888-1969)

When the going gets tough, we waive preliminary hearings.

— Orrie E. West, Public Defender for Horry County, South Carolina

In Horry County, the public defender’s office refuses to appear at any preliminary hearings, and the magistrates refuse to allow the public defender clients to go forward without their attorneys – the two together amounts to a systemic denial of due process for a majority of criminal defendants in Horry County.

One at a time, the judge identifies those who have applied for a public defender – it quickly becomes clear that none of these individuals have spoken to their attorney, although they have filed their application for a public defender it is still early in their case and many do not even know their attorney’s name. As each person identifies his or herself, the judge explains that the public defender does not do preliminary hearings and therefore that person’s hearing is waived. One at a time, they walk out of the courtroom, confused and angry. Towards the beginning, two of them try to argue with the judge, explaining that they are prepared to go forward without their lawyer, but the judge refuses, explaining that if their attorney says their hearing is waived then it is waived. Have a nice day.

 There is no downside to preliminary hearings – no harm comes to the defendant, they cannot go to jail if they lose, their charges cannot be increased if they lose.

When the case is not dismissed, or if it is dismissed and the solicitor indicts it and revives the charges, the benefit is still obvious. We now have a transcript of the officer’s testimony, early in the case, as to what the evidence will show. The officer is now locked into that testimony and the transcript can provide invaluable impeachment material for trial if the officer tries to change the story when trial begins. It also gives us a picture of who the officer is, how they will testify, will they lie on the stand, are they evasive, or are they straight up and honest. All of which is invaluable if this case goes to trial.

In any jurisdiction, there are aspects of the process that the courts don’t take particularly seriously.  In New York City, it’s discovery, a near worthless joke where the prosecution produces a Voluntary Disclosure Form that may or may not be accurate (with no penalty for material error or omission), where the defense gets as much, or as little, as the prosecutor deems to provide.  Judges routinely ignore any effort to gain greater disclosure, statute notwithstanding.

Exculpatory evidence is routinely ignored everywhere, which is why I call Brady the biggest joke every played by William O. Douglas.

But what Bobby describes is different.  As he says, it’s a systemic denial. It immediately conjures up images of Amy Bach’s Ordinary Injustice, of a system sliding into the abyss without any of its players either noticing or caring, and taking the systemic failure as just the way things are done.

An advocate of the public defender’s mantra, we are real lawyers, Gideon ponders:

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights.

Gideon assumes, and is likely correct, that the policy in Horry County is the product of funding shortfalls, the allocation of scarce resources rather than the wholesale lack of caring by the local public defender for the welfare of their clients.  In furtherance, Gideon is willing to cut the PDs a break and allow them a waiver of a preliminary hearing when there’s no particular reason to believe that it’s going to produce anything significant.  Gideon is more forgiving than Bobby in this regard.

While I share the outrage and disgust, what bewilders me is that the public defender, having made a deliberate decision for forego a critical stage of the proceedings, which doesn’t seem to bother the judge much, and certainly won’t cause any sleepless night in the legislature, hasn’t brought about the protests of the organized criminal defense bar, either in South Carolina or nationally.

Bobby G. Frederick has shown the moxie to call out the Horry County public defender and magistrate for this systemic failure.  What of the South Carolina Association of Criminal Defense Lawyers?

Mission Statement “You can only protect liberties in this world by protecting the other man’s freedom.” Clarence Darrow The South Carolina Association of Criminal Defense Lawyers is devoted to protecting the liberty of the citizens of South Carolina by fighting to ensure justice and due process for all persons accused of any criminal act. We promote excellence and integrity in the practice of criminal law by providing the highest quality criminal law seminars to those who defend the accused. We speak with a united voice in challenging legislation directed to limiting or eliminating the rights of the individual and we labor for laws that preserve equal access to justice for all.

Funny how they can be pretty darned efficient when sending out dues notices and holding gala dinners to hand out awards to their “mandarins.”  And “Liberty’s Last Champion” is busy promoting its CLEs.  Plenty of high-minded ideals that make lawyers feel proud.  Excellence, Champion, all for the price of membership.  It says so on the certificates, so it must be true.

All the while, a poor defendant can’t get a preliminary hearing for trying in Horry County.  And if it wasn’t for Bobby Frederick, nobody would know.  And nobody would care.

At My Law License, Brian Tannebaum writes a provocative post (yes, everything he writes is provocative, but this one was also interesting) about second lawyers.

Or like the policy I want to talk about here, never being the second lawyer.

Yep, that’s mine.

I don’t want to be the second lawyer, for several reasons.

One, and most important, is that the majority of people who have a falling out with the first lawyer, will never be happy with any lawyer.

Many calls I receive from clients with Bar complaints begin with “I was the (second, third, fourth) lawyer on the case.”

What would you do for a Chevy Tahoe?   Bobby Frederick in South Carolina notes that it’s not just prosecutors offering cash incentives for “productivity.”

In the past, South Carolina law enforcement officers have been awarded prizes such as Dodge Chargers and Chevy Tahoes based on how many arrests they make over the course of a year. DUI enforcement is a profitable business for law enforcement, for municipalities, and for organizations such as MADD.

Law enforcement receives grant money to make arrests for driving under the influence, and prosecutors receive grant money for prosecuting DUI’s, which does not necessarily translate into effective DUI enforcement – it can just as easily translate into an unforeseeable number of law abiding citizens being harassed on the roadside, jailed, and in some cases forced to trial.

When police officers are competing for recognition or even material rewards based on the number of arrests that they make, they are going to err on the side of arresting and any practical use of discretion that there once was has now gone out of the window.

Does anybody really need an app to locate the nearest Starbucks in Milwaukee?  I mean, sure, it saves you from having to ask the guy standing three feet away from you, or swiveling you head from side to side and possibly straining something, but the task is readily accomplished without resort to cutting edge technology.

Others, however, have no analogue.

From  Common Dreams, our government is busy playing venture capitalist to encourage the creation of new apps designed to foster democracy around the world, with or without a mocha frappucino.

WASHINGTON – Some day soon, when pro-democracy campaigners have their cellphones confiscated by police, they’ll be able to hit the “panic button” — a special app that will both wipe out the phone’s address book and emit emergency alerts to other activists.

The panic button is one of the new technologies the U.S. State Department is promoting to equip pro-democracy activists in countries ranging from the Middle East to China with the tools to fight back against repressive governments.

Now that’s an app.  While the government may be thinking Tahrir Square, what about Washington Square Park?  The cops swoop in for a drug roundup and, bing, you hit the panic button.  No evidence here, officer, as all the street corner sellers scatter.

The U.S. technology initiative is part of Secretary of State Hillary Clinton’s push to expand Internet freedoms, pointing out the crucial role that on-line resources such as Twitter and Facebook have had in fueling pro-democracy movements in Iran, Egypt, Tunisia and elsewhere.

The United States had budgeted some $50 million since 2008 to promote new technologies for social activists, focusing both on “circumvention” technology to help them work around government-imposed firewalls and on new strategies to protect their own communications and data from government intrusion.

Forget satellite borne lasers and missiles and think twitter as the critical technology for the development of freedom around the world.  While the efficacy of communication trends is secondary to the groundswell of opposition to dictatorial and oppressive regimes, it’s hard to coordinate an uprising without a way to communicate.  Think of what Ronny Reagan might have done if only he had an iPhone.

The irony, of course, is that this tech is being developed for revolutionaries around the world, but certainly not intended for domestic availability.  While the government is gung ho for freedom when it comes to unfriendly regimes,  not so much when it comes to free and unfettered communication at home.

The F.B.I. has been quietly laying the groundwork for years for a push to require Internet-based communications services — like Gmail, Facebook, Twitter, BlackBerry and Skype — to design their systems with a built-in way to comply with wiretap orders. On Thursday, the bureau made its first full airing of the “going dark” problem.

“Due to the revolutionary expansion of communications technology in recent years, the government finds that it is rapidly losing ground in its ability to execute court orders with respect to Internet-based communications,” said the F.B.I.’s general counsel, Valerie Caproni.

There’s a lesson in here somewhere, though it may be no deeper than to order a new smartphone from the Verizon store in Bahrain rather than the one on the corner, the shiny new one with the panic button.  It might be useful to include an app that causes the phone to immediately start audio and video recording and transmitting the recording to an offsite server where it can remain, safe from being doctored or deleted.  Now there’s a useful app.

What this panic button concept suggests, however, is that there are potential applications that can have rather broadbased appeal and some dubious uses aside from their intended uses.  The millions being developed now for pedestrian commercial purposes barely scratch the surface of what we may look forward to in the future. 

How about some apps designed for the criminal defense bar?  Maybe a panic button that immediately connects to a criminal defense lawyer to assert a person’s right not to be questioned without a lawyer present?  And tells the nearest Starbucks to deliver a piping hot mocha frappucino to the local lockup?

H/T Ed at Blawg Review

The Federal Bureau of Investigation has issued an internal memorandum to guide agents in the interrogation of “terrorists” in advance of providing Miranda warnings, institutionalizing the position of the Obama Administration and reminding all liberal-minded folks of how fortunate they are not to have a reactionary conservative regime in power that doesn’t respect civil liberties.

The  New York Times got hold of the memo and published it.  It includes these interesting parts:

3. There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.

The public safety exception of  New York v. Quarles predated the war on terrorism, though it was rarely invoked.  It now been elevated, like the terrorist threat level, to a place of prominence.

The obvious and dubious guidance is that agents may choose to questioning despite the absence of any continuing threat where “the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”  The disadvantage is that the questioning may not provide admissible evidence at trial.  The memo offers no basis for agents, or the Special Agent in Charge (SAC) to decide to pursue unMirandized questioning after the Quarles exception has terminated.

What makes this notable is the policy favoring agents ignoring Miranda to obtain information rather than to adhere to Miranda warnings.  Despite Quarles having been decided in 1984, it has always been the outlier position and issuance of Miranda warnings have always been the norm. 

But now that the policy has shifted against Miranda, where will it stop?  At Volokh Conspiracy, former federal judge and Utah lawprof Paul Cassell spells out the obvious next question:

The larger interesting question is why should the new policy be limited to suspected terrorists.  Presumably FBI agents question many other suspects who pose a threat to the American people.  It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved.

Bear in mind, this comes from the hand of a former federal judge, presuming that “suspects” pose a threat to “the American people” and thus open the door to invocation of the public safety exception in, well, pretty much any circumstance.  This isn’t the first time Cassell has advocated for the use of the public safety exception to trump constitutional protections.  Indeed, he’s argued that we shouldn’t rely on something as transitory as a Supreme Court decision, but  should codify the exception (and make it the rule rather than the exception) so it’s available to everyone at anytime.

Cassell’s notion that situations involving terrorism are “relatively exotic” strikes me as somewhat quaint.  Tack the word terrorism onto any common criminal phrase and, poof, like magic the rules disappear.  Terrorist threats?  Aren’t the all?  Terrorist jay-walking?  Why not?

This seems as good a time to recall Nino Scalia’s dissent in Maryland v. Craig :

The State’s interest here is in fact no more and no less than what the State’s interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.

The F.B.I. memo, aside from coming out of an administration whose audacity at damaging the civil liberties traditionally protected by Democrats Republicans criminal defense lawyers, doesn’t change the rule of Quarles, or the “disadvantage” for ignoring the obligation to provide Miranda warnings.  What it does is give permission to ignore the rule and (theoretically) suffer the consequences of inadmissibility.  In other words, the government need not comply with the rule of Miranda simply because the Supreme Court says it’s the rule.

That it took a lawprof all of 30 seconds to push for the extension of the exception, the leap onto the slippery slope, doesn’t come as a surprise given Paul Cassell’s leaning toward anything that expedites the public safety at the expense of constitutional rights.  But what of the young minds he’s molding in law school? 

As  Walter Olson notes in Schools of Misrule, though in relation to the dreaded liberal causes, the heads of future leaders are being filled with political crap masquerading as law in order to satisfy the personal agendas of lawprofs.  Every student of Paul Cassell’s at the S.J. Quinney College of Law, University of Utah, raise your hand.

While the fear of terrorism that’s been cultivated over the past decade has given rise to broad support of a different set of rules, or no rules at all, in the interest of public safety, the opposite fear that it’s just baby steps away from dissipation of the rules for everyone is hardly overwrought.  Just ask Paul Cassell.  After all, criminals do pose a threat to public safety, but let’s not try to chalk the dissipation of constitutional rights up as a humanitarian one.

District Attorney Carol Chambers, whose office handles the prosecutions in Arapahoe, Douglas, Elbert and Lincoln counties, Colorado, has a point. 

Having vividly expressed my thoughts, from the attorneys’ perspective, on lawyers bidding for work, there remains a surprisingly large hole in the discussion about why it’s no good for potential clients as well. 

This glaring omission became clear after reading an article in the Wall Street Journal, where I was asked why this wasn’t good for clients if bad for lawyers.  I explained, but it never made it to paper.  I would have expected lawyers to innately appreciate the problems, while non-lawyers only become aware of issues after a problems hits them between the eyes.

The plus side is the potential (not necessarily the reality, even assuming everything is on the up and up) of finding an affordable attorney.  It’s just as likely that an honest lawyer is going to quote a legitimate price for his services, no different than he would under any other circumstances.  The only difference is that he comes unrecommended, and the client is buying a pig in a poke at market value.

The other pluses?  None.

The negatives, however, are more lengthy.

1.  Gut spilling:  A client posts about his litigation online.  This is available to be seen by any lawyer, including opposing counsel.  This reveals information, may constitute a statement against penal or pecuniary interest, may even be an admission.  Clients are funny this way.  As they are uncounseled when the write up their request, they say all sorts of stuff that should never be put in writing, constitute damaging admissions (since they have no idea what constitutes a damaging admission) and bare their souls for all the legal world to see. 

Maybe it’s just poorly expressed, because clients aren’t schooled in the art of legal spin, or maybe its client hyperbole since most clients are absolutely certain that their reasoning is overwhelmingly persuasive and there can be no reasonable disagreement with their righteousness, but it’s now in writing on the internet.  Will a discount lawyer be able to save a client from himself?

2. Mistake:  Clients frequently present their needs as a slam dunk, sure thing, when it’s not. They relate the situation in a way that argues their position rather than state’s the problem, causing the honest attorney to be mislead and the dishonest attorney to see opportunity.  In fairness, any competent lawyer realizes that a client can’t, and shouldn’t, be expected to understand and anticipate the myriad problems and issues that could arise or require counsel, but then the nature of the scheme is that the lawyer bids on the client’s request.  There’s no point in bidding on what the client doesn’t yet realize he needs.

After they’ve gotten into the case, there’s the “aha” moment when the reality becomes clear, and the attorney explains that the deal he bid on isn’t the deal he’s being asked to litigate.  The client unwittingly changed the rules of the game, and the lawyer can no longer be held to his bid. Cha-ching.

3.  Change of Plans:  Clients rarely have a firm grasp on what they’re getting into before seeking to commence litigation, and usually think it’s all going to go away, or be completed, quickly and painlessly, because they’re right and God is on their side. Once they realize that the attorney can’t complete the representation in, oh, 3-4 hours, or the other side didn’t collapse into a puddle as soon as they lawyered up,  they find themselves in the middle of contentious, years-long litigation, without the will or wherewithal to complete it.  So they are now stuck in the middle of a nasty battle, all money gone and no ability to pay either the lawyer or the requisite experts (that’s right, sometimes you need witnesses and evidence, and that costs money too) to win or lose.  Yes, sometimes you lose, even after paying money to a lawyer.  Bummer.

4.  Commodities:  Some work, such as simple wills or incorporations, are generally considered commodities, basically fill in the blank work that can be done by pretty much anybody at a fixed price.  While this is true under some circumstances, which circumstances they are remains to be determined.  Finding out that a client needed more than a simple will, or has ex-wife problems, kid problems, after death is a little too late.  There is no legal work that can be truly handled as a commodity, though poor attorneys may disagree. 

There are always issues, questions, personalization, that must be asked and understood before an attorney commits to do the work a client requests.  Clients won’t realize it, which is why there are lawyers, but if the lawyers are doing only as the client directs (and the work for which they bid), then a large part of what lawyers are there to provide is lost.  Of course, this won’t present a problem until something goes wrong, at which point it can be a diaster.

5.  Fungibility: Lawyers are not fungible, meaning that any lawyer is not the same as any other.  Clients won’t know if the lawyer is any good, has any experience, has the necessary competence.  They can ask, and the lawyer can assure them that he’s the real McCoy.  How would the client know?  Most lawyers don’t think they’re incompetent, so let’s assume they aren’t lying.  Just mistaken.  How is a client to distinguish on the internet between a lawyer who can competently handle a matter from one who can’t?  Beats me.

Bidding is being touted as a wonderful way for new lawyers to generate some income because, well, they need income.  What they lack are clients, experience and skills, but they are told that it’s completely appropriate to describe themselves as experience, skillful and caring because if they don’t, nobody will ever hire them.  It’s not that they want to deceive people per se, but that they want to pay off their student loans. Is this what you’re looking for? 

6.  Jurisdiction:  So the lawyer is absolutely brilliant at cranking out wills in New York.  But you’re in North Dakota.  Same thing? I dunno, and neither do you.  When will you find out if the lawyer made a fatal mistake under the law of your state?  You won’t because you’ll be dead, and it’s too late to do anything about it anyway. Tough break for your heirs. Add into the the unauthorized practice of law problem, as lawyers are licensed by a particular jurisdiction to practice law, but they cannot practice law in other states.  Silly? Perhaps, but that’s the law. Do you want to hire a lawyer who breaks the law, even if it seems silly? 

7. Recourse: So you’ve found the perfect lawyer at the perfect price, but after a bit, things don’t seem nearly as perfect as they did on day one.  What are you going to do about it when your lawyer is in some other state far away from you?  Do you, North Dakotan, who already placed affordability first, want to go to California to go after your lawyer? Do you plan to hire a California lawyer to sue your other California lawyer.  Where are you going to find this new lawyer, on eBay?  How did that work out for you the last time your tried it.

Max Kennerly, who has demonstrated a deep concern for the welfare of the poor and downtrodden (and never hesitates to rip me a new one whenever I fail to show sufficient sensitivity, nonetheless decries this scheme:

Who wants half-baked advice on an investment in a startup company, or, for that matter, a will, or a lease? It’s like asking who wants an operation from the discount surgeon. There’s a market for good legal representation on all of these matters; anyone unwilling to pay those market fees is probably well-advised just doing it themselves. It beats paying half-price for no-value.

If lawyers think Nancy Grace is an embarrassment, what do meteorologists think?



CNN keeps Grace on the tube because so many Americans think she’s just wonderful.  These are our friends, neighbors, family and jurors.  And they watch Nancy Grace.  It’s my deepest hope that she will turn her attentions to the weather going forward and leave the law alone.  After all, there’s not much you can do to change the weather.

H/T Turley