Not that it comes as any surprise, given the financial pressures many lawyers face and their facile ability to rationalize why that which puts money in their pocket isn’t evil at all, but still, it’s a shocker.  Via the Turk at New York Personal Injury Law Blog, the forward-thinking State of North Carolina has a bill before its legislature to allow non-lawyers to own law firms.

The proposal has some limitations designed to  address concerns. 

The bill introduced March 9 by Fletcher Hartsell, a Republican and lawyer, would allow non-lawyers to buy up to 49% of a firm, leaving it in control of licensed attorneys. (It came to my attention via AmLaw.) The bill, which would also allow outside investors to buy into accounting firms, includes language designed to prevent non-lawyers from interfering with the relationships between attorneys and their clients. Non-lawyer shareholders would be barred from interfering “with the exercise of professional judgment by licensed attorneys,” and in the case of a dispute among lawyers, shareholders and clients it shall be resolved according to the following schedule:

1. The duty to the Court shall prevail over all other duties.

2. The duty to the client shall prevail over the duty to shareholders

 That language is designed to allay concerns that lawyers would answer to investors instead of their own clients, or the courts of which they are considered officers.

Well that seems clear enough, ignore the people who are pumping money into your law firm because the rules say the client comes first.  What could go wrong with that?

As ethics expert and legal blogger Larry Ribstein put it here, far more eloquently than I could:

The rules are purportedly based on the notion that nonlawyer owners insufficiently imbued with professional standards would transform law firms from citadels of altruism into profit-hungry businesses.

Ribstein argues these rules are anachronistic and “limit the market for legal skills.” Instead of watching Goldman Sachs lure away the best lawyers with offers of higher pay, he suggests, why not let Goldman buy the whole firm and run it with the same attention to the bottom line as it applies to investment banking?

No doubt that’s because of the deep concern for altruistic Goldman Sachs demonstrates in the management of its own business.  Just ask  Sergey Aleynikov about Goldman Sachs’ concern for others.

Granted, law firms want to make a profit, and in the eyes of many are already “profit-hungry businesses.”  But if so, then why is there a need to change the rules? The fact remains that law firms, even Biglaw, tempers its hunger with substantial pro bono activities.  Whether you want to call it noblesse oblige or marketing, it happens.

As Eric the Turk points out, however, the interests of non-lawyer investors won’t be subject to the rules constraining lawyers in his niche, personal injury.

When the disciplinary committee comes a callin’, they will profess to be shocked, just shocked, at how their firms’ names were given to potential clients.

Let me show you how this works in the real world. This past weekend there was a horrific bus crash in the Bronx that killed 15 people. And attorneys are prohibited under New York’s 30-day anti-solicitation rules from approaching any of the injured victims or next of kin.

So how can lawyers work around this? By using marketing firms to launder their ethics.

And that’s how ethics are circumvents now, by those so inclined.  Add non-lawyer owners to the mix, and it slides downhill fast.  After all, the non-lawyers don’t report to the managing partner.  They aren’t subject to the nasty stares of the disciplinary committee.  Non-lawyers can thumb their noses at legal ethics, and make sure that they do everything necessary to make sure the bottom line is profit.

It’s no stretch to see how this could play out in criminal law, where guarantees of outcome could be sold like commodities futures.  How much does a winning witness cost these days?  And what is the price of silence for that poor crime victim?

Ribstein’s focus on the bottom line, and what he sees as the “brain drain” of lawyers from practice to profit, is bolstered by his couching his views in pejorative language, “citadels of altruism.”  It’s true that law has fallen off the wagon of being a profession with a fundamental obligation toward serving clients, but is the proper response to run as far away from the wagon as possible?  In the view of some, well, that’s absolutely how they see it.  Abandon all hope and do whatever it takes to cash in.

On the other hand, the assumption that the brain drain is a bad thing may be very short-sighted.  We’re awash in hungry lawyers as law schools keep churning out more than society can absorb.  Law schools need to fill chairs as academic profit centers and to keep their lawprofs’ Ferraris adequately serviced.  The ABA sees no problem.  Ever. 

Young lawyers (with massive loans to repay, as we’re perpetually reminded) demand their right to make money.  They are entitled, therefore,to anything that offers the promise of making money.  And as I’m told, it’s only  curmudgeons like me (and Mark Herrmann) who are standing in the way of their getting rich by throwing roadblocks like excellence, client service and ethics in their face.

The underlying problem, which cash-obsessed lawyers fail to recognize, is that they never should have been lawyers at all.  It’s hard to practice law.  Being a professional requires sacrifice, dedication to someone other than yourself.  it’s fine that some people don’t have a feel for such things, but then they have no business being lawyers.  Let the brain drain happen, and let’s rid the ranks of the legal profession of those who elevate profit over dedication to their clients.  They never should have been lawyers to begin with, and their loss is not only a non-problem, but a benefit to those who remain.

Whether the future of law firms is in equity, debt or just a return to the practice of law rather than praying at the alter of profit, is a question on the table these days.  Those who argue that the traditions of a profession are archaic relics of a dead society, and who simultaneously lust for lucre, should take their expensive educations and put it to good use.  Just not as lawyers. 

Let investors buy up firms of lawyers, who do anything but practice law.  Let them enjoy each other’s company and make fun of us curmudgeons.  We can take it.

And with that in mind, some song for thought.

The insider trading trial of Galleon boss Raj Rajaratnam is finally hitting its stride, with Ashby Jones at the  WSJ Law Blog chronicling every burp and yawn.  Coverage has been “colorful.”

Akin Gump’s John Dowd can be an aggressive lawyer. In fact, the WSJ described his tactics in his current defense of Raj Rajaratnam as “combative” just a little over a week ago.

After the government completed its direct of cooperator Anil Kumar, the former McKinsey & Co. director who claims he fed Raj inside information in exchange for hundreds of thousand of dollars, it was time for cross.  Finally, a chance to see Dowd use his CDL-fu.

Dowd Tuesday focused on the payments Kumar was alleged to have received in exchange for the information he paid to Rajaratnam. Dowd first highlighted his failure to report them on his tax returns to the Internal Revenue Service.

“In fact they were fraudulent,” Dowd said during one of several exchanges.

“Is that a question?” countered Kumar, who testified that he had turned over his income from Rajaratnam to the government and recently paid an additional $1 million to cover his potential tax liability.

A feisty witness, which is a critical lesson to a cross-examiner, who now knows that the witness is going to spar with him from the stand.  This adds a weapon to the cross-examiner’s arsenal, the ability to use the witness’ resistance to admit the obvious, to agree with what he’s already conceded, to show how he’s not there to tell the truth, or to vindicate his past criminal conduct, but to fight for his team.

With this knowledge in hand, Dowd goes in for the kill.

Dowd later asked what promises  Kumar had received in exchange for his cooperation to avoid prosecution on additional crimes and potentially receive a lighter sentence. Earlier, in his opening statement, Dowd had said government witnesses were testifying to “save their own skins.”

“It’s important to testify in this court to make [Assistant U.S. Attorney Jonathan] Streeter happy, correct?” Dowd said, referring to the lead prosecutor, Jonathan Streeter.

“Wrong,” Mr. Kumar responded. He said he was testifying to “uphold the law” and let the jury decide whether Rajaratnam should be convicted.

“Don’t you agree that the government’s objective is to convict Mr. Rajaratnam?” Dowd continued.

“Wrong,” Kumar said.

Wrong.  Wrong?  Of course, this isn’t a complete, or necessarily accurate, transcript of the cross-examination, but it appears to be highlights. 

Given that Raj has put his billions to use retaining Akin Gump’s Dowd, with a dozen additional minions to sit around the courtroom with their blackberrys aflutter, it’s a little surprising that the battle was joined with such a pedestrian cross, more along the lines of Cross of the Snitch 101 than a master class.

When you get an answer like Kumar’s “uphold the law” crap, that’s the time to go to town.  Smurf every crime Kumar committed, and conceded on direct, and end each question, “Did you do that to ‘uphold the law’?”  When you’re done, point out the intervening events that gave rise to his epiphany that he is now deeply concerned about upholding the law whereas before, he was deeply concerned that the cash was green. 

What are those intervening events?  Oh yes, you got caught.  Then you were prosecuted.  Then you decided to flip sides and cooperate.  Then you decided to leave your fate, your  sentence, in the hands of the prosecutor who would assess the value of your cooperation.  Then you came here to testify against Raj.  And now, your deepest concern is for “upholding the law.” 

“And you don’t care at all whether your testimony in this case means that you spend no time in prison or 30 years in prison, do you?”

“Now it’s all about upholding the law, and you would be happy to go to prison for the rest of your natural life, if it means upholding the law, right?”

“And you came to this realization, that your deepest, most sincere concern is for upholding the law, only after you were caught, prosecuted?”

“And that, you say, is the reason you are now cooperating with the prosecution, because your real interest is in upholding the law?”

“And you aren’t interest in saving yourself from a life in prison?”

No doubt the transcript of Kumar’s cross will reveal that Dowd ripped him a new one after Kumar tried to mess with him.  After all, the rat’s testimony that he’s doing it to “uphold the law” is as ripe a response as it gets, and opens the door to all sort of great mischief.  And you certainly can’t rely on Ashby to put all the really good stuff in a post, so the chance of Dowd’s having neglected to hammer Kumar on cross as would appear from the post is slim.

But just in case, maybe some criminal defense lawyers can offer him a bit of help in crossing the snitch who is testifying because he wants to “uphold the law.” As a courtesy to our Akin Gump brother, feel free to offer your version of cross in the comments.  Would that be wrong?

The  New York Times reports that the York Avenue Preschool has failed the offspring of Nicole Imprescia by not getting her into an Ivy League school.  Imprescia’s daughter, Lucia, is now 4 years old, but we all know that price of admission is paid early.

The suit charges that preschool education is critical to a child’s success in life, quoting from various news articles. “It is no secret that getting a child into the Ivy League starts in nursery school,” says one. “Studies have shown entry into a good nursery school guarantees more income than entry into an average school,” says another.

Instead of prepping little Lucia for the E.R.B.s, which will dictate whether she’s given the corner office in the long-term future, she “was ‘dumped’ into a class with 2-year-old children, talking about shapes and colors, according to the lawsuit.”  No mother pay’s $19,000 for preschool to have their baby dumped.

Turley has given Imprescia the nickname “Tiffany Mom,” to distinguish her from “Tiger Mom” and mom’s who drive minivans.

As entrance in top schools has become more and more competitive, parents are becoming more aggressive in seeking to guarantee every advantage for their children. In the case of Nicole Imprescia, this means going to court to sue a school over its failure to prepare her daughter for the Ivy League. Her daughter, Lucia, is four. The school is the York Avenue Preschool. It seems that there are “Tiger Moms” but then there are “Tiffany Moms.”

I assume that Turley means to suggest that Imprescia buys mass produced jewelry from once-great stores that are now chains and do a ton of catalogue sales, and trade off the impression that they are better than they are because they were once a significant brand.  Or maybe not, since Turley is a big public school supporter, meaning that he’s egalitarian in spirit and prays nightly that his kid doesn’t join the crips.

There’s nothing new about the attitude toward child-rearing demonstrated by Imprescia.  Or Turley, for that matter.  This has become a cliche among Manhattan wannabes, who indeed are Tiffany aficionados and left to believe that an inadequate score in the E.R.B.s spells a life of miserable poverty and, gasp, the potential of being dumped into a state school.  The shame is that Imprescia’s suit has doomed any possibility that little Lucia will ever be admitted to a decent private day school.  What was she thinking?

And in a bizarre twist of fate, Dan Hull, taking time off from his disco comeback album, posts today in Slackoisie Studies, a video by George Carlin that’s particularly apropos.

Law firms recruiting Generation Y lawyers may want to cut the description of their history and tradition on their websites and brochures.

Lawyers in Generation Y—which includes those up to 30 years old—typically have an expectation of change, according to Ballad Spahr diversity director Virginia Essandoh, in an article for the National Law Journal. They support innovation and creativity, expect up-to-date technology, and have a sense of fair play and civic responsibility.

It may help if the perks will impress the parents of Generation Y lawyers, since parental opinions may be important as new lawyers choose the law firms where they want to work, Essandoh says. Parents may be more likely to endorse a firm that demonstrates concern for the well-being of its associates with wellness programs, cab vouchers, and dinner programs for late-night work, she writes.

Ultimately, it comes back to pleasing the Tiffany mom.  Apparently, it’s true that everything one needs to know is learned in preschool.  Provided the preschool prepares you for the E.R.B.s.

Update:  Will today never stop dropping an embarrassment of riches on SJ?  Via Mike on twitter, the further escapades in American Exceptionalism:

Around mature developed areas, protection of a wonderful relic of our history, the family farm, is a high priority.  It provides open space, greenery and a vision of the once-bucolic nation that few would believe existed if they didn’t see it with their own eyes.  They are indeed worthy of protection as the last vestiges of an agrarian society.

In Florida, however, State Senator Jim Norman has taken his passion for farms to the extreme.  Via  Eugene Volokh and Kevin Underhill, Norman has  proposed a bill making it a felony to take pictures of a “legitimate” farm without the consent of the owner.  On its face, the law seems ludicrous, but the foundation appears to stem from farms coming under the scrutiny of groups like PETA and environmental organizations that fault the treatment of animals and farming methods. 

Via Treehugger, the point is driven home.

Norman’s motivation for the law originates in the increasing negative publicity that factory farming practices have received after a number of undercover videos taken by people posing as farmworkers exposed animal abuse and generally horrific conditions.

Ultimately Tom Laskawy’s reading of the situation in general is correct:

This is about the tendency in the food industry and, sadly, to believe that transparency and knowledge are the enemy of a functioning food system. People must not know how animals are slaughtered and processed. People must not know the nature and safety of all the chemicals involved in agricultural and food production and processing. People must not know if food is genetically modified. This belief now appears to undergird the very logic of the American industrial food system.

And points out, “It doesn’t take a close reading of the Constitution to know you can make photographing private property from a distance illegal.” Which is mostly true, but there are exceptions made for military installations and other places on national security grounds.

While blawgs have been quick to point out the faults of the law itself, and ridicule its proposal as either absurd or an over-reaction to some barely articulable harm, those involved in causes that seek transparency in the  “American industrial food system” aren’t laughing about it at all.

Indeed, there is a strong, if small, corps of people who go though great lengths to expose what they believe to be abject cruelty toward animals in the farming/ranching operations.  And they aren’t just taking photos from the road of the nice looking silo.  They are actively infiltrating operations.

But that wouldn’t have been the case with undercover videos of factory farming, which obviously require a person to be on the property rather than just shooting from a public space, and makes the whole thing enter into some legal grey area. Though, I’m inclined to believe that existing laws on clandestine filming and photography, as well as trespassing, are sufficient to cover the matter.

Which is all to say that whether this bill proceeds very far or not–I certainly hope it doesn’t–I wouldn’t be so hasty to dismiss it as legally absurd with a wave of the hand.

As Eugene points out, the bill as written is replete with flaws of imprecision, overbreadth and plain vanilla First Amendment violations.  As Kevin points out, the idea that taking a picture of a farm from the road could conceivably expose someone to a first degree felony conviction with a penalty of up to 30 years in prison goes so far beyond shocking as to be laughable. 

It is not a joke, however, to either the farmers/ranchers or those who find their methods abusive.

An unspoken reality is that most of us are carnivores, enjoying a good steak or Grandma’s meatballs.  They come from cows.  We know it, but we chose not to think about it.  We have no plans to give up eating meat, but we really have no desire to be confronted with how it gets from hoof to plate.

And eat your vegetables is a mantra that almost every child hears, but neither mother nor child wants to know what’s sprayed on them so that we can find brussel sprouts on the supermarket shelf looking oh-so-appetizing at such a reasonable price.  Take a quick glance at the organic version, and then its price, and consider the likelihood of much of America being able to afford to serve up a plate to the kiddies every day.

There is a huge battle being fought in the trenches of the farming and ranching industries, and not without reason.  Ultimately, people need to eat, and farms and ranches need to remain in business unless our concern for the welfare of domestic food animals and ingesting pesticides, both in our apples and water overtakes our hunger.

While the proposed law clearly goes far beyond the limits of law and reason, and is itself worthy of all the ridicule that’s been heaped upon it, the issue it seeks to address is quite important to all involved.  The fact that Jim Norman would put us in prison for pulling out the old Brownie and hoping Elsie smiles is just a product of incredibly poor drafting and total ignorance of unintended consequences.

The more fundamental question of whether you want to see videos of animals being slaughtered that will make your stomach turn, or whether you think soylent green is a viable alternative, is still in dispute.  We can make fun of this law all day long, but it belies some very difficult issues and problems for both sides of the debate.

CNN Justice notes that Joshua Komisarjevsky wants to make a deal. Komisarjevsky is the co-defendant with Stephen Hayes, convicted of the Cheshire Connecticut Petit rapes and murders.

July 2007, Komisarjevsky and Steven Hayes invaded a home in Cheshire; beat and tied up Dr. William Petit; raped and strangled his wife, Jennifer Hawke-Petit; molested one of their daughters; and set the family’s house on fire before attempting to flee.

The two daughters — 17-year-old Hayley Petit and 11-year-old Michaela Petit, both of whom had been tied to their beds — died of smoke inhalation. Petit escaped to a neighbor’s home.

Hayes has been sentenced to death.  While Komisarjevsky situation is somewhat different than Hayes’, it’s not enough so to feel comfortable that he won’t face the same fate.  There’s little chance of his not being convicted, and too much chance that the jury will vote to end his life. 

So Joshua Komisarjevsky’s lawyer, unnamed in the CNN story but who I assume to be Jeremiah Donovan, wants to cut a deal to take death off the table.  To this end, a motion was filed that explains why Komisarjevsky is less culpable than Hayes and why Judge Jon Blue should accept the offer to plea. 

The motion states that Komisarjevsky’s primary reason for the conditional plea is to “avoid another lengthy, expensive and emotionally charged trial that will undoubtedly cause extreme mental anguish to the Petit and to the Hawke families, to the community at-large and to his own family, friends and supporters.”

This, of course, is absurd.  The primary reason for the condition plea is to save Komisarjevsky from death.  It’s a pretty good reason to want a deal, given the likelihood of execution as the outcome.  But it makes for a weak bargaining position.

This case is both a great and terrible example of plea bargaining.  Deals are bilateral.  There has to be something for both sides to gain, and lose, in order to make a deal.  In contract, it’s called “consideration.”  In criminal law, the consideration is the fear of losing, whether by conviction and sentence if one is the defendant or by acquittal and release for the prosecution. 

The problem for Donovan is that his gun is empty.  He’s shooting blanks and he knows it.  The evidence against Komisarjevsky is beyond overwhelming, leaving essentially no hope of beating the rap.  And it’s such a horrific crime that the potential for death cannot be ignored.  Offering to plea guilty has no counterpart here of acquittal. Offering life rather than death gives the prosecution nothing.  It’s an offer without consideration.

And so, Donovan has attempted to frame his motion in such a way as to create a give-back where none otherwise exists.  The plea will save the state from a “lengthy, expensive and emotionally charged trial,” and save the Petit and Hawkes’ families “extreme mental anguish.”  Donovan is doing what lawyers have to do, sometimes make lemonade out of lemons.

There’s no harm in making the motion.  The worst that can happen is that the judge says no and he’s in the same position as he is now.  On the other hand, the argument proffered, that it’s good for the state and the families, is weak.  Those are concerns for the prosecution to offer, not the defense.  To the extent there is merit to the arguments, they should motivate the prosecution to offer a deal to Komisarjevsky, rather than the other way around.  I would expect Donovan is well aware of this.

What seems most likely is that Donovan is making his best plea for mercy now, before his world heats up beyond control when the trial is about to start.  Maybe now heads are a little cooler.  Maybe now the need to closure, a misguided need though it may be, has been sated by the sentence imposed on Hayes.  Maybe now Judge Blue has proven his death penalty bona fides and need not do so a second time.  Maybe.

This is likely the best opportunity Komisarjevsky will get to save his life.  And he’s got little to trade for it.  It puts the ball in Judge Blue’s court, testing his mettle on the death penalty, on mercy, on blood lust.  Donovan is trying to give him the wedge to distinguish between Stephen Hayes, the person who lit the match, and Komisarjevsky, the person who, though  guilty of many wrongs, did not chose the death of the Petits.

“Steven Hayes admitted raping and strangling Mrs. Hawke Petit; Steven Hayes purchased the gasoline and doused the house with it, including specifically over Mrs. Hawke Petit’s body; and, as the state has already argued, Steven Hayes lit the fire that culminated in the unnecessary, senseless and tragic deaths of the Petit children,” the motion stated.

“Coupled with these realities is the fact while Joshua Komisarjevsky is guilty of many things, he never intended the deaths of Jennifer Hawke Petit or her two daughters, which he explained to law enforcement while giving a prompt and detailed rendition of events that has been corroborated in large measures by the state’s forensic evidence,” the document continued.

The opportunity is there for the court to find a reasoned basis to distinguish between Hayes and Komisarjevsky. There are legitimate reasons to conclude that his conduct, though horrible, is not as horrible as his co-defendant., and that Judge Blue may believe Hayes’ sentence of death appropriate, that death is not appropriate for Komisarjevsky.

If Judge Blue wants to, he can grant the motion. He has the opportunity to contemplate what becomes of Joshua Komisarjevsky.  Now is when the decision will be made whether he lives or dies.

Like almost everyone reading this, I lack any qualifications to suggest the implications of the meltdown(s) occurring in Japan.  Experience has taught me, however, that promises by experts have never saved a life.  We will learn the significance of these events, whether they be dire or demonstrative proof that the nuclear energy industry has advanced to the stage where we need no longer fear catastrophe.

From Morgsatlarge, via David Kopel at VC, a letter by Dr Josef Oehmen, a research scientist at MIT, in Boston. He is a PhD Scientist, whose father has extensive experience in Germany’s nuclear industry.

I am writing this text (Mar 12) to give you some peace of mind regarding some of the troubles in Japan, that is the safety of Japan’s nuclear reactors. Up front, the situation is serious, but under control. And this text is long! But you will know more about nuclear power plants after reading it than all journalists on this planet put together.

There was and will *not* be any significant release of radioactivity.

By “significant” I mean a level of radiation of more than what you would receive on – say – a long distance flight, or drinking a glass of beer that comes from certain areas with high levels of natural background radiation.

I have been reading every news release on the incident since the earthquake. There has not been one single (!) report that was accurate and free of errors (and part of that problem is also a weakness in the Japanese crisis communication).

The explosion Tuesday at Japan’s Fukushima Daiichi nuclear plant has elevated the situation there to a “serious accident” on a level just below Chernobyl, a French nuclear official said, referring to an international scale that rates the severity of such incidents.

The International Nuclear and Radiological Event Scale — or INES — goes from Level 1, which indicates very little danger to the general population, to Level 7, a “major accident” in which there’s been a large release of radioactive material and there will be widespread health and environmental effects.

“It’s clear we are at Level 6, that’s to say we’re at a level in between what happened at Three Mile Island and Chernobyl,” Andre-Claude Lacoste, president of France’s nuclear safety authority, told reporters Tuesday.

A Level 6 seems a pretty major to me.  Are we still happy because it could have been worse?

Having received some inquiries/complaints about the lack of transparency around SJ, I thought a quick tour might squelch the rumors that this blawg is actually written by a large group of elves in a boiler room.  So buckle up and enjoy the ride.

This is the entrance to SJ World Headquarters.  Notice our security force.  You can never be too safe.

This is the SJ reseach library.

This is the SJ waiting room, where all the important visitors to World HQ sit and wait.

This is the SJ  combo art collection and heating plant.  You can never have too much heat.

And this is where I sit in the morning before sunrise, drink a few cups of joe and type stuff on the computer.  No elves.

Hope you enjoyed the tour.

Over at Military Underdog, Eric Mayer tells the story of the lawyer who loved too much.

A fellow attorney was lauded for his use of tech (particularly PowerPoint slideshows) during closing arguments. He used pictures and music to portray a very touching scene designed to get the finder of fact to sympathize with his client. In one case, he used it in a Involuntary Manslaughter case where the client drank, drove, wrecked, and killed the passenger in the car. The case was actually a negotiated plea for 2 years. The judge sentenced his client to 4 years. So, his client did the 2 years as negotiated.

He felt like he was on a roll, and a lot of folks complimented him on using a very emotional PowerPoint in his closing. As a result, his boss encouraged everyone to find ways to incorporate technology into their openings and closings.

In another case, a marijuana case, the lawyer was urged to take a good plea.

“Cut your losses,” we said. “Military juries get pissed about this stuff. Go with the judge.”

He didn’t listen. He wanted to make music. He wanted to extract emotion. And he wanted to try it on a jury.

His client was guilty. They all knew that. For sentencing argument, the attorney rambled for 50 minutes, then presented a musical powerpoint as the finale’. The lights turned on after the song, and the jury’s faces told a simple story.

They were pissed.

Not even an hour passed for deliberations. 5 years, bad-conduct discharge. It was 3 years harsher than a guy caught with 35 child pornography videos some months earlier.

In  the comments that follow,  Carolyn Elefant argues that, like it or not, technology has come to the courtroom.

Look, it’s one thing to rail against the focus on technology to the exclusion of practice skills and judgment. And I will grant you that in your example, the use of Powerpoint in this case seemed both misguided and unfortunate.

But technology is coming to the courtrooms – perhaps not criminal or military courts, but federal courts and state courts in more metropolitan areas. And if solo and small firm lawyers are not familiar with how to use it in their cases, they will be at a serious disadvantage.

To which Eric replies :

I’m not railing against the use of technology. I’m railing against reliance upon the same.

The guy in my anecdote centered his case around the PowerPoint presentation. It guided his argument and was even the focus of his choice of forum. Much of his overconfidence came from others (particularly superiors) gushing over his use of tech. They should have gushed over his use of tech to SUPPORT his argument.

Rarely do we see such a fundamental issues played out so clearly.  Eric is hardly a Luddite:

When I arrive in court, I have a laptop (sometimes 2), iPad, iPhone, and MiFi (this doesn’t include the stuff brought by my co-counsel). This is in addition to the tech already in the military courtroom, which is substantial (Have you seen the size of the defense budget in this country?)

How much of this hardware he needs or uses is hard to say, but clearly he doesn’t fear it.  At the same time, he’s not blinded by love.  Many are.  Whether its the encouragement of  superior or the high tech choir on the internet, where things are so crazy that  there are blogs dedicated to lawyers who use Macs, some hear the message that cases are won by flashy presentations and shiny hardware.  If there’s a small “i” somewhere in your bag, you’re golden.

We all have anecdotes about technology, how it worked well in one instance, enabling a jury to see images with the circles and arrows and marks that made them understand an argument that might otherwise have been incomprehensible, and how the PowerPoint inexplicably failed during summation, leaving the lawyer stymied, confused, embarrassed and empty handed.

But Eric’s story is apocryphal not because of a technical glitch, but because it shows how we can come to adore technology too much.  So much that it confounded our judgment and makes us forget that tech is just a tool in our box, to be pulled out when it suits the job and otherwise to lay there untouched. 

Carolyn is right, that technology is a fact of life.  It would be foolish to ignore the existence of potent tools that can facilitate our efforts.  Only an idiot would use the butt of a screwdriver to drive home a nail when there’s a hammer available.  But technology should be used because it suits what we do, not the other way around.  We don’t develop our case to make it tech friendly, but take advantage of tech because it furthers our defense.

It can be very difficult not to fall in love with the tools available to us, to come to believe that these tools can do anything, win anything, make every case a winner.  Talk about them, that failure to use something like a PowerPoint presentation spells disaster in the courtroom confuses the tool with the craftsman.  Some cases will have no use for tech.  Some cases won’t be won no matter how many small “i”s you have in your bag.  Some cases demand skills for which there are no technological substitutes.

Which case is which is a matter of lawyerly judgment.  There’s no tech substitute for judgment.

And no matter how many small “i”s you have in your bag, there is no case that can be won with a bag filled with hi-tech and devoid of the basic lawyering skills that have been used to defend the accused forever.  Those who love tech too much may forget that the ability to examine and cross, open and close, voir dire and object, will always be more important that the shiniest of gadgets.

There aren’t a lot of World War II vets around anymore.  Their service to our country has given rise to the name, “The Greatest Generation.”  But that doesn’t mean that any particular vet has the greatest ideas.  Even 91 year old Martin Harty, first-term state representative from Barrington, New Hampshire. 

From the Concord Monitor :

A 91-year-old state representative told a constituent that he believes in eugenics and that the world would be better off without “defective people.”

Barrington Republican Martin Harty told Sharon Omand, a Strafford resident who manages a community mental health program, that “the world is too populated” and there are “too many defective people,” according to an e-mail account of the conversation by Omand. Asked what he meant, she said Harty clarified, “You know the mentally ill, the retarded, people with physical disabilities and drug addictions – the defective people society would be better off without.”

There’s something about being 91 years old, whether it’s the disinhibition of old age or the onset of senile dementia.  Word around the statehouse if that Harty isnt turning out to be the most effective legislator.

Colleagues say he is hard of hearing and has appeared confused in recent House sessions.

“He’s shown signs of great confusion in committee in terms of House process and content,” said Rep. Marilinda Garcia, a Salem Republican who serves with Harty on the House Legislative Administration Committee.

So why is he tolerated?

Rep. Jon Richardson, an Allenstown Republican on the Legislative Administration Committee, said he does not condone Harty’s comments on any level, but he takes into account the fact that Harty is a World War II veteran in his 90s.

House Speaker William O’Brien said in a statement that he does not endorse Harty’s comments but respects “his longstanding commitment to protect the values we cherish.”

“As someone who served in General Patton’s Army in North Africa and Italy against dictators like Hitler and Mussolini, he has given far more to our country and our ideals than most of us ever will,” O’Brien said.

That may well be true, but at what point does the free pass for a World War II vet expire?  One can certainly respect and honor the sacrifice a soldier made for his country while recognizing that his brain is past its prime. 

My father is a World War II veteran as well, having earned his bronze star and three purple hearts.  It wasn’t until he reached his 80s that he was ready to talk about his time in the Ardennes Forest.  His stories were compelling, horrifying and fascinating. And if my father ran for office, I wouldn’t vote for him.  He is still a wonderful raconteur, but his finger is no longer on the pulse of the nation.  To his credit, he knows it.

Martin Harty, for reasons unknown, felt that he would make a good state rep at the age of 91.  Apparently, enough of his constituents agreed to elect him. I’m going to take a complete leap of faith and guess that he didn’t run on the eugenics platform.  His initiative, then, might come as a bit of a surprise, maybe even an embarrassment, to the good citizens of his district.

Of course, Harty has lived a good long time, and may believe that his experiences combined with the unlikelihood of his running for re-election, allows him to speak his mind on issues of controversy.  Thus, Harty elucidates:

Harty said nature has a way of “getting rid of stupid people,” and “now we’re saving everyone who gets born.”

Omand says Harty then stated, “I wish we had a Siberia so we could ship them all off to freeze to death and die and clean up the population.”

Harty told the Monitor he was “just kidding” about Siberia.

Before you dismiss Harty out of hand for being some crazy old coot, his ideas are not without their cultural and historical foundations.  Consider  how the Inuits use to put the non-productive members of their family during times of famine onto an ice floe and let them drift out to sea.  Of course, those weren’t the mentally ill, or even the terminally stupid.  Those were the old folks and the practice is called senilicide.

Maybe Harty isn’t as crazy as he seems.  Just misdirected? Only kidding, as the really nutty ones here are the people who voted for this honorable World War II veteran to represent them in the state legislature.  What the heck were they thinking?

Update:  Even service in WWII  wasn’t enough to carry him through:

State Rep. Martin Harty (R-NH) has resigned from the New Hampshire House of Representatives following his comment to a constituent that mentally challenged people and other “defective” people should die in a modern-day Siberia.

New Hampshire Republican leaders are searching for ice floes.

When the market for lawyers crashed, so too did the work/life balance scam being promoted by those who sought to rationalize their choices.  Just as misery loves company, so do those who chose unconventional paths but refuse to face up to their choices. 

There is nothing wrong with making the decision to reject the typical lawyer path.  It’s not for everyone, and given the numbers of warm bodies being churned out of law schools, and the lies promulgated about being able to “have it all,” there were bound to be plenty of people for whom the law really wasn’t a good fit.  Let me emphasize: There is nothing wrong with this.

But why, then, are some lawyers who decide to pave their own way ashamed of themselves?

I would expect them to deny it to their dying breath. but the evidence is indisputable.  They hold hands and chant, like third graders in the choir, that they are real lawyers.  Sadly, Susan Cartier Liebel, founder of Solo Marketing University, has chosen to use her bully pulpit to become the  head cheerleader for this delusion.

Those who proclaim ‘real’ lawyers as only those who live and breathe the law – well this tragic stereotyped lawyer is often the one pictured as working 100 hours per week forgoing their families, their health, and other personal or business interests.  This scary ‘real’ lawyer is the one most prone to falling into disabling depression, life-altering addiction,  deliberately committing egregious acts to get disbarred because they can’t voluntarily slow down or admit they don’t want law to consume their souls anymore or the pressure to sustain the ‘image’ is no longer bearable.

‘Real’ lawyers come in all shapes and sizes and flavors.

There is no guru on any hill anywhere I know of who has been universally recognized and authorized to determine who has the requisite amount of passion and purpose, the right blend of hours worked and the perfect balance of all of life’s activities to call one lawyer over another a ‘real lawyer’… except the bar commissioners who give (or take away) a legal license based upon your ability to do your job and your other activities within ethical boundaries.

Susan has always had a nasty, if particularly unpersuasive, habit of lapsing into what Stephen Colbert calls “truthiness.”

Merriam-Webster’s #1 Word of the Year for 2006:

1. truthiness (noun)

1 : “truth that comes from the gut, not books” (Stephen Colbert, Comedy Central’s “The Colbert Report,” October 2005)

2 : “the quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true” (American Dialect Society, January 2006)

By creating a strawman, a caricature, and then jabbing at it a few times if not landing a serious blow, she rallies the misbegotten to her side, stroking their fevered brow. They need validation, fearful that others are laughing at them, and she offers it, collecting friends and admirers like Father Damien collected lepers.  Except Father Damien actually helped them, rather than made them feel better about their disease.

It’s fine to argue that any person with a valid license to practice law is a “real lawyer.”  It’s just unhelpful and deceptive.  The problem stems from an abject denial that there is any difference between these “real lawyers” and those other “real lawyers” who have full-time practices with law offices and staff and a decent copy machine. 

If they weren’t ashamed, they would embrace their choices and take pride in what they do instead of faking it to feign the appearance. Again I emphasize, there is nothing wrong with taking an alternative path.  What is wrong is pretending that you aren’t, that your path is “just the same” as lawyers in traditional practice and that there is no difference.  Lawyers who have chosen different paths may have a license to practice law, but they do not have a license to deceive.

A license to practice is an anachronism in certain respects.  It entitled its holder to perform all manner of legal work, even though the horse and buggy days of the general practitioner are largely gone.  Medicine has done a far better job of acknowledging, teaching and qualifying specialists, while the law has kept its head buried in the sand. 

The kid 12 minutes past his admission is just as much a lawyer as the old man with decades of solid experience.  The lawyer who is adept at his work is no more a lawyer than the one who botches case after case.  The lawyer in his pajamas at a keyboard is just as much a lawyer and the one who can appear 24/7 in court when the call comes in.  If the definition of real lawyer is one who has a ticket, then there are no distinctions.  But there are, of course.  The distinction are life threatening to the client who is deceived and sends his paypal payment to the wrong lawyer.

Many of the alternate paths offer sound options for lawyers.  The virtual law office may work very well for some types of practice, enabling a lawyer to charge less, earn more, and perform just as well as a lawyer in a wood-paneled downtown office.  All the VLO lawyer need do is explain to the client that there is no office to drop by should an emergency arise and he desperately needs to speak with someone.  It’s not necessarily a bad thing, but a trade-off.  Informed consent seems an appropriate description.

Other lawyers, those who want to handle a bit of work but only on the time frame that suits the lawyer’s lifestyle rather than the client’s needs, may also be a fine path provided the client understands that the lawyer will not be there for him when the lawyer’s kids have a recital at school.  If the client doesn’t mind sitting in the hoosegow waiting for the standing ovation to subside, then everything is cool.

Even the unbundling of legal services path has its merit, provided that it’s limited to those instances where the client doesn’t suffer for the consequential issues he couldn’t possibly foresee (since he’s a client, not a “real lawyer”) when the unbundled work is done and the client is unceremoniously left hanging by his fingernails.  There are no doubt instances where unbundling will serve a client well and save some decent money, but the critical issue for a “real lawyer” is to identify the risks of unbundling and make sure the client understands that he may be jumping from the frying pan into the fire.

Of particular note are those lawyers who have adjusted their practice to fit their family demands.  I have enormous admiration for those who want to return to or continue to practice law while simultaneously caring for their children.

Aside: Some assume that this refers to women, and that anyone questioning is sexist.  Quite the contrary. This reveals their covert prejudice, as if there are no male lawyers who care for their kids and adjust their practice to change diapers, feed hungry mouths or clap at recitals.  I’m one of them, having never missed one of my son’s fencing meets, and I wont tolerate being told that only women care for their children.

Those who do must, by definition, give up significant time and availability.  It’s a perfectly legitimate choice for a lawyer to make.  It also carries very real ramifications for a lawyer’s ability to complete that 79 page contract that absolutely, positively must be done in 6 hours when the kids are home with the measles. 

I was once put into a foursome with some relaxed looking guys. I asked one what he did, and he told me he was a reformed lawyer. He drove the ball 250 yards, straight and true.  I shanked mine.  I wished I was a reformed lawyer, but I’m not.  He was proud to let me know that he had plenty of time to work on his swing.

There are people who hold law licenses but don’t practice law.  They are not real lawyers.  They may be reformed lawyers, or former lawyers, but they are not real lawyers if they don’t practice law.  The license is just a piece of paper. Being a lawyer is what one does for clients.

Susan is right, that “lawyers come in all shapes and sizes and flavors,” but they’re not all “real lawyers” as far as being honest with the public, and with themselves.  If their alternative paths are not harmful and do not detract from the ability to serve their clients, then take pride in your path.  Admit it happily and readily.  Promote it.  Own it.

If you hide it, conceal it, lie about it, pretend that it doesn’t exist, then you’re not a “real lawyer.”  Real lawyers practice law.  Real lawyers are honest about what they do and the consequences for clients.  Real lawyers are not ashamed of the choices they make.  Real lawyers do not deceive themselves or their clients.  Real lawyers are not liars.  Real lawyers do not hide in the choir of others who share their misgivings about taking alternate paths. Real lawyers are not enablers or apologists of such deception.

Go down whatever path works best for you.  If you can’t be proud of it, own it, be honest about it and put your client first, then you aren’t a real lawyer.  No truthiness changes it.