1. Just read Zakaria's most recent Newsweek article--it was okay, but I loved this quote:
Elihu Root: "About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop."
2. Iran's government seems confusing at first glance, but it's actually similar to the way American corporations operate. At the top, you have your Board of Directors (Supreme Leaders), who direct the executive officers (Guardian Council). The shareholders speak through their representatives (the President and Parliament), but the real power lies with the Board and the executive officers.
This analogy isn't exact, but the two processes are very similar. The result is similar also: ordinary shareholders--the common citizens--don't have much sway over major corporations--the country--unless they band together and vote as a bloc, which is logistically difficult to do.
3. I wanted to compliment our local courts' filing clerks. I usually deliver documents myself to the courthouse for filing. Except for two people over the last five years, everyone I've dealt with at the filing clerk level has been very professional. That's a great track record, especially because many of the clerks get rotated/transferred every year.
"And if an epitaph be my story, I'd have a short one ready for my own: I had a lover's quarrel with the world." -- Robert Frost
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Saturday, June 20, 2009
Monday, May 18, 2009
Unconventional Thinking, Congress, and Facebook: the War against the Average American
I love these paragraphs from a recent New Yorker article on basketball (Malcolm Gladwell, May 11, 2009, "How David Beats Goliath"):
This is the second half of the insurgent’s creed. Insurgents work harder than Goliath. But their other advantage is that they will do what is “socially horrifying”—they will challenge the conventions about how battles are supposed to be fought. All the things that distinguish the ideal basketball player are acts of skill and coordination. When the game becomes about effort over ability, it becomes unrecognizable—a shocking mixture of broken plays and flailing limbs and usually competent players panicking and throwing the ball out of bounds. You have to be outside the establishment—a foreigner new to the game or a skinny kid from New York at the end of the bench—to have the audacity to play it that way. George Washington couldn’t do it. His dream, before the war, was to be a British Army officer, finely turned out in a red coat and brass buttons. He found the guerrillas who had served the American Revolution so well to be “an exceeding dirty and nasty people.” He couldn’t fight the establishment, because he was the establishment.
I am citing this New Yorker piece in-depth because it perfectly summarizes my own mentality ("tremendous energy"). The "outsider" mentality may be one reason few people can tell I'm a lawyer. Like the immigrant basketball coach, I wholeheartedly agree with playing unconventionally to win, and I'd like to think my own outsider status causes me to act differently than 99% of lawyers. Like the New Yorker-profiled basketball team, I fight corporate Goliaths on a more-than-average basis, and I've gained the ire and disapproval of several of the ultimate insiders--judges. Why should you care? Because, as I will show you, America's legal and political systems are tilted in favor of the establishment and against the middle class.
The problem with the author's basketball/war analogies is they don't emphasize an unfortunate third party--referees. In a large athletic conference, in court, or in war, the bigger entities tend to get the benefit of the call (i.e., a favorable appellate court reversal or the ability to escape war crime prosecution) as well as the benefit of being repeat participants. The author mentioned that in one game when the referees didn't like the coach's style, they called fouls against the team at a 4-1 ratio, causing the unconventional team to lose. The same bias sometimes happens in court.
In court, the big firms and companies sometimes get "assists" from the legal system, even if neither side will ever admit it. Part of that is due to the convoluted evidence code and the expense in admitting certain documents, which are much easier to handle for corporations with large litigation budgets. But even removing the evidence code's rigors, bigger firms and companies are repeat players in court, which builds a familiarity with judges, clerks, and other government workers. For example, I had a case where my client had sued a county. The judge's office was in the same building as the lawyers representing the defendant/government. Whom do you think is going to get the benefit of the doubt in that case?
Making matters worse, many judges tend to be former D.A.s or city/county attorneys. Thus, in many modern day governments, workers in the legislative, executive, and judicial branches tend to know each other. Instead of breeding contempt, this familiarity tends to create an implicit "scratch-your-back and I'll scratch yours, and we'll all retire with our government pensions" culture. Such a culture is against the idea of America itself, which was created with three separate, independent branches so that various factions would fight each other if one branch attempted to increase its power. The founders may not have envisioned a situation where all three branches were riding high on government pensions, automatic payroll deductions from government employees via taxpayers, and lobbyist funding, thereby creating fewer incentives to look out for individual constituents. Indeed, when politicians have lobbyist money, who needs actual voters, except on one day every few years?
In short, corruption doesn't have to involve quid pro quo to result in public harm. All that's necessary is to align interests so no one in power wants to rock the boat. If you look at what's happened with gerrymandering--where the Dems and Republicans have carved up easy-to-win voting districts (in the name of racial justice, no less), it's an easy example of incentives causing corruption.
Consider defense spending. The defense budget is massive--easily one of the largest sources of government expenditures, i.e., taxpayer dollars. Many defense projects involve systems that will not be used more than a few times--making them questionable expenditures--or systems that will not be functional until 2017 and beyond, meaning such projects can afford to have further delays until America has a better balance sheet.
The defense contractors realized that they had to align incentives to keep the money coming, so they started building different pieces of their systems in different states, spreading the wealth and guaranteeing Congressional votes. Some of these projects are unnecessary, but no Senator wants to be the one who tells his district Lockheed Martin is taking its business to another state. So who wins? Defense contractors and defense employees. Who loses? The people--who have to pay the bills for these systems, which requires America to print more money, which weakens the American dollar, restricts future flexibility in spending, and/or causes inflation. Thus, taxpayers, our children, and the country suffer while defense contractors and employees run to the bank. It's not corruption per se, but another case of misaligned incentives.
There are numerous instances of these kinds of misaligned incentives, and the legal system is especially rife with them. First, who makes the laws? You think your Senator and his/her staff are in a D.C. office typing up the next draft of legislation? Usually not. Typically, it's the lobbyist who pays money to get the Senator's ear and then who gives the Senator a proposed bill of law. Who can afford lobbyists? Megacorps and large organizations (such as national unions), not Joe the Plumber or Matt the Small Town Lawyer. Can you see the problem of misaligned incentives yet?
Let me make it even more clear. Congresspersons rely on donations for re-election campaigns and happy constituents. These factors tend to favor the status quo and rich people. For instance, whom do you think has the most money to donate to political campaigns? Joe Six-Pack, Big Labor, or Big Corp? If you think Congress spends its days trying to help the little guy, just remember this: politicians still have to get elected, and to get elected, they need the majority and/or money; thus, Congress can't realistically force the majority to give anything substantial to the minority. In other words, as long as Congress makes the laws, the laws will rarely help minorities who lack substantial assets, such as people of color (generally speaking), the average American family, most small business owners, etc.
One example of corporate America's obvious influence over Congress is copyright law. The internet companies managed to get Congress to pass a law (Digital Millennium Copyright Act, or DCMA) protecting them for hosting copyrighted material on their sites. To summarize, YouTube, Google, Yahoo, Craigslist, and other internet companies get a free pass as long as they follow some guidelines. Now, you'd think Congress would try to protect the end user, i.e., the internet user, who tends to vote. Not at all. If you download a copyrighted song or TV snippet on your PC that belongs to Viacom, Viacom can come after you and sue you and receive statutory damages. If it has filed for a copyright, it may ask for its attorneys' fees, even if it hasn't suffered any actual monetary loss (it's hard to prove that companies actually lose money, because many people wouldn't necessarily have bought the song or TV show they've downloaded for free). [See 17 USC 505 for attorneys' fees provision.]
The attorneys' fees provision is especially terrible for the consumer because it creates an incentive to go after the casual internet user, even if this person hasn't caused the company more than de minimus financial loss. It's also unnecessary, because corporate America has plenty of lawyers on call it can afford to pay out of pocket--it doesn't need a fee-shifting statute to protect its rights.
But what about the small town author who writes a book, only to see someone put it online for free? I've thought about this issue, and I can't come up with a reasonable compromise involving attorneys' fees, but I'm still inclined to just remove the attorneys' fees provision. Without such a provision, copyright holders would leave individuals alone and only sue entities or individuals that caused them major damages or that had enough money to pay damages. (If readers can think of a way to allow copyright holders attorneys' fees in a way that doesn't provide an incentive to sue small-time infringers when damages are de minimus, please add your comments.)
In any case, Congress gave corporate America a sweet deal when it came to copyright laws. Why didn't Congress make some effort to protect the average internet user? Well, the people who drafted the DCMA legislation were affiliated with major internet companies. They wrote what the internet companies wanted and helped get it passed. Congress rubber-stamped the proposal and didn't seem to care enough to protect the average American. Copyright is an issue that impacts almost every average voter. If Congress didn't care enough to protect the average American on this issue, what do you think happens when other laws are passed?
Here's another quick example that shows Congress passes laws to help corporations, not consumers. Facebook users, by using Facebook, have to consent to this provision (as of the time of this publication):
"If anyone brings a claim against us related to your actions or your content on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
In other words, if you post a music video on your wall, and Facebook gets sued because you posted copyrighted material, you have to pay Facebook's legal fees and damages if it loses in court. Facebook has made you, the average American, an insurer for its business. Will Facebook actually utilize this provision against one of its users? Probably not. Still, the lesson remains the same: Congress clearly cares about corporations and their lobbyists, not the average American; otherwise, it would have made such one-sided indemnification provisions illegal, or at least placed a cap on indemnification reimbursement. In the end, people who think they can change society through new laws are naive. Most of the time, a new law just gives a power-hungry lawyer who happens to know the state Governor or legislator the power to interfere in your life.
I will talk more about the legal system another time. For now, I'll just say that if more non-lawyers knew how the legal system actually worked, more Americans would be libertarians. You want to make America a better place? Start with the tax code. The tax code may be a set of laws, but it's really a system of financial incentives that happens to be codified. Right now, the tax code favors big corporations, nonprofits, large banks, and housing speculation. It doesn't help small businesses much. It doesn't help families enough. That's a shame, but at least it shows who Congress is looking out for these days--mortgage lenders, developers, insurance companies, and big corporations. Where's the anger?
This is the second half of the insurgent’s creed. Insurgents work harder than Goliath. But their other advantage is that they will do what is “socially horrifying”—they will challenge the conventions about how battles are supposed to be fought. All the things that distinguish the ideal basketball player are acts of skill and coordination. When the game becomes about effort over ability, it becomes unrecognizable—a shocking mixture of broken plays and flailing limbs and usually competent players panicking and throwing the ball out of bounds. You have to be outside the establishment—a foreigner new to the game or a skinny kid from New York at the end of the bench—to have the audacity to play it that way. George Washington couldn’t do it. His dream, before the war, was to be a British Army officer, finely turned out in a red coat and brass buttons. He found the guerrillas who had served the American Revolution so well to be “an exceeding dirty and nasty people.” He couldn’t fight the establishment, because he was the establishment.
T. E. Lawrence, by contrast, was the farthest thing from a proper British Army officer. He did not graduate with honors from Sandhurst. He was an archeologist by trade, a dreamy poet. He wore sandals and full Bedouin dress when he went to see his military superiors. He spoke Arabic like a native, and handled a camel as if he had been riding one all his life. And David, let’s not forget, was a shepherd. He came at Goliath with a slingshot and staff because those were the tools of his trade. He didn’t know that duels with Philistines were supposed to proceed formally, with the crossing of swords. “When the lion or the bear would come and carry off a sheep from the herd, I would go out after him and strike him down and rescue it from his clutches,” David explained to Saul. He brought a shepherd’s rules to the battlefield.
The price that the outsider pays for being so heedless of custom is, of course, the disapproval of the insider. Why did the Ivy League schools of the nineteen-twenties limit the admission of Jewish immigrants? Because they were the establishment and the Jews were the insurgents, scrambling and pressing and playing by immigrant rules that must have seemed to the Wasp élite of the time to be socially horrifying. “Their accomplishment is well over a hundred per cent of their ability on account of their tremendous energy and ambition,” the dean of Columbia College said of the insurgents from Brooklyn, the Bronx, and the Lower East Side. He wasn’t being complimentary. Goliath does not simply dwarf David. He brings the full force of social convention against him; he has contempt for David. I am citing this New Yorker piece in-depth because it perfectly summarizes my own mentality ("tremendous energy"). The "outsider" mentality may be one reason few people can tell I'm a lawyer. Like the immigrant basketball coach, I wholeheartedly agree with playing unconventionally to win, and I'd like to think my own outsider status causes me to act differently than 99% of lawyers. Like the New Yorker-profiled basketball team, I fight corporate Goliaths on a more-than-average basis, and I've gained the ire and disapproval of several of the ultimate insiders--judges. Why should you care? Because, as I will show you, America's legal and political systems are tilted in favor of the establishment and against the middle class.
The problem with the author's basketball/war analogies is they don't emphasize an unfortunate third party--referees. In a large athletic conference, in court, or in war, the bigger entities tend to get the benefit of the call (i.e., a favorable appellate court reversal or the ability to escape war crime prosecution) as well as the benefit of being repeat participants. The author mentioned that in one game when the referees didn't like the coach's style, they called fouls against the team at a 4-1 ratio, causing the unconventional team to lose. The same bias sometimes happens in court.
In court, the big firms and companies sometimes get "assists" from the legal system, even if neither side will ever admit it. Part of that is due to the convoluted evidence code and the expense in admitting certain documents, which are much easier to handle for corporations with large litigation budgets. But even removing the evidence code's rigors, bigger firms and companies are repeat players in court, which builds a familiarity with judges, clerks, and other government workers. For example, I had a case where my client had sued a county. The judge's office was in the same building as the lawyers representing the defendant/government. Whom do you think is going to get the benefit of the doubt in that case?
Making matters worse, many judges tend to be former D.A.s or city/county attorneys. Thus, in many modern day governments, workers in the legislative, executive, and judicial branches tend to know each other. Instead of breeding contempt, this familiarity tends to create an implicit "scratch-your-back and I'll scratch yours, and we'll all retire with our government pensions" culture. Such a culture is against the idea of America itself, which was created with three separate, independent branches so that various factions would fight each other if one branch attempted to increase its power. The founders may not have envisioned a situation where all three branches were riding high on government pensions, automatic payroll deductions from government employees via taxpayers, and lobbyist funding, thereby creating fewer incentives to look out for individual constituents. Indeed, when politicians have lobbyist money, who needs actual voters, except on one day every few years?
In short, corruption doesn't have to involve quid pro quo to result in public harm. All that's necessary is to align interests so no one in power wants to rock the boat. If you look at what's happened with gerrymandering--where the Dems and Republicans have carved up easy-to-win voting districts (in the name of racial justice, no less), it's an easy example of incentives causing corruption.
Consider defense spending. The defense budget is massive--easily one of the largest sources of government expenditures, i.e., taxpayer dollars. Many defense projects involve systems that will not be used more than a few times--making them questionable expenditures--or systems that will not be functional until 2017 and beyond, meaning such projects can afford to have further delays until America has a better balance sheet.
The defense contractors realized that they had to align incentives to keep the money coming, so they started building different pieces of their systems in different states, spreading the wealth and guaranteeing Congressional votes. Some of these projects are unnecessary, but no Senator wants to be the one who tells his district Lockheed Martin is taking its business to another state. So who wins? Defense contractors and defense employees. Who loses? The people--who have to pay the bills for these systems, which requires America to print more money, which weakens the American dollar, restricts future flexibility in spending, and/or causes inflation. Thus, taxpayers, our children, and the country suffer while defense contractors and employees run to the bank. It's not corruption per se, but another case of misaligned incentives.
There are numerous instances of these kinds of misaligned incentives, and the legal system is especially rife with them. First, who makes the laws? You think your Senator and his/her staff are in a D.C. office typing up the next draft of legislation? Usually not. Typically, it's the lobbyist who pays money to get the Senator's ear and then who gives the Senator a proposed bill of law. Who can afford lobbyists? Megacorps and large organizations (such as national unions), not Joe the Plumber or Matt the Small Town Lawyer. Can you see the problem of misaligned incentives yet?
Let me make it even more clear. Congresspersons rely on donations for re-election campaigns and happy constituents. These factors tend to favor the status quo and rich people. For instance, whom do you think has the most money to donate to political campaigns? Joe Six-Pack, Big Labor, or Big Corp? If you think Congress spends its days trying to help the little guy, just remember this: politicians still have to get elected, and to get elected, they need the majority and/or money; thus, Congress can't realistically force the majority to give anything substantial to the minority. In other words, as long as Congress makes the laws, the laws will rarely help minorities who lack substantial assets, such as people of color (generally speaking), the average American family, most small business owners, etc.
One example of corporate America's obvious influence over Congress is copyright law. The internet companies managed to get Congress to pass a law (Digital Millennium Copyright Act, or DCMA) protecting them for hosting copyrighted material on their sites. To summarize, YouTube, Google, Yahoo, Craigslist, and other internet companies get a free pass as long as they follow some guidelines. Now, you'd think Congress would try to protect the end user, i.e., the internet user, who tends to vote. Not at all. If you download a copyrighted song or TV snippet on your PC that belongs to Viacom, Viacom can come after you and sue you and receive statutory damages. If it has filed for a copyright, it may ask for its attorneys' fees, even if it hasn't suffered any actual monetary loss (it's hard to prove that companies actually lose money, because many people wouldn't necessarily have bought the song or TV show they've downloaded for free). [See 17 USC 505 for attorneys' fees provision.]
The attorneys' fees provision is especially terrible for the consumer because it creates an incentive to go after the casual internet user, even if this person hasn't caused the company more than de minimus financial loss. It's also unnecessary, because corporate America has plenty of lawyers on call it can afford to pay out of pocket--it doesn't need a fee-shifting statute to protect its rights.
But what about the small town author who writes a book, only to see someone put it online for free? I've thought about this issue, and I can't come up with a reasonable compromise involving attorneys' fees, but I'm still inclined to just remove the attorneys' fees provision. Without such a provision, copyright holders would leave individuals alone and only sue entities or individuals that caused them major damages or that had enough money to pay damages. (If readers can think of a way to allow copyright holders attorneys' fees in a way that doesn't provide an incentive to sue small-time infringers when damages are de minimus, please add your comments.)
In any case, Congress gave corporate America a sweet deal when it came to copyright laws. Why didn't Congress make some effort to protect the average internet user? Well, the people who drafted the DCMA legislation were affiliated with major internet companies. They wrote what the internet companies wanted and helped get it passed. Congress rubber-stamped the proposal and didn't seem to care enough to protect the average American. Copyright is an issue that impacts almost every average voter. If Congress didn't care enough to protect the average American on this issue, what do you think happens when other laws are passed?
Here's another quick example that shows Congress passes laws to help corporations, not consumers. Facebook users, by using Facebook, have to consent to this provision (as of the time of this publication):
"If anyone brings a claim against us related to your actions or your content on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
In other words, if you post a music video on your wall, and Facebook gets sued because you posted copyrighted material, you have to pay Facebook's legal fees and damages if it loses in court. Facebook has made you, the average American, an insurer for its business. Will Facebook actually utilize this provision against one of its users? Probably not. Still, the lesson remains the same: Congress clearly cares about corporations and their lobbyists, not the average American; otherwise, it would have made such one-sided indemnification provisions illegal, or at least placed a cap on indemnification reimbursement. In the end, people who think they can change society through new laws are naive. Most of the time, a new law just gives a power-hungry lawyer who happens to know the state Governor or legislator the power to interfere in your life.
I will talk more about the legal system another time. For now, I'll just say that if more non-lawyers knew how the legal system actually worked, more Americans would be libertarians. You want to make America a better place? Start with the tax code. The tax code may be a set of laws, but it's really a system of financial incentives that happens to be codified. Right now, the tax code favors big corporations, nonprofits, large banks, and housing speculation. It doesn't help small businesses much. It doesn't help families enough. That's a shame, but at least it shows who Congress is looking out for these days--mortgage lenders, developers, insurance companies, and big corporations. Where's the anger?
Wednesday, May 13, 2009
Lawyers Paid Not to Work?
Sounds like the GM jobs bank, doesn't it? Some lawyers are getting paid $80K not to work:
http://finance.yahoo.com/career-work/article/107024/Getting-Paid-Not-to-Work
Before you rush to submit your law school application, remember, these are big, prestigious law firms--there's only about 100 to 150 of them nationwide. Consequently, only the top 10 to 15% of law school graduates get these jobs. If you do some rough math, most law school grads have less than a 10% chance of getting these positions, unless they attend a top twenty law school.
Most lawyers probably work for the government; insurance companies; or insurance-related companies. My dreams of following in Thurgood Marshall's footsteps did not work out exactly as I'd planned. Oh, well. Even if someone had told me back then what I was in for, I wouldn't have listened.
http://finance.yahoo.com/career-work/article/107024/Getting-Paid-Not-to-Work
Before you rush to submit your law school application, remember, these are big, prestigious law firms--there's only about 100 to 150 of them nationwide. Consequently, only the top 10 to 15% of law school graduates get these jobs. If you do some rough math, most law school grads have less than a 10% chance of getting these positions, unless they attend a top twenty law school.
Most lawyers probably work for the government; insurance companies; or insurance-related companies. My dreams of following in Thurgood Marshall's footsteps did not work out exactly as I'd planned. Oh, well. Even if someone had told me back then what I was in for, I wouldn't have listened.
Sunday, May 10, 2009
Lawyers and Dysthymia
Lawyers tend to suffer from all kinds of maladies. Now, we have to worry about "dysthymia," too:
My kind of depression is termed “dysthymia” in the DSM IV (mental health’s diagnostic “Bible”). With dysthymia, a person can still function—after a fashion. However, life’s colors are faded. It’s more difficult to enjoy pursuits that had, not long ago, brought pleasure. We withdraw from our closest relationships.
More here. I think the lesson is not to go into divorce law, aka family law. I used to make appearances for other lawyers in family court, and I got really sad after spending just an hour in court. Many people in family court are self-represented (pro se). It is hard to see people go at each other in public, especially when kids are involved.
My kind of depression is termed “dysthymia” in the DSM IV (mental health’s diagnostic “Bible”). With dysthymia, a person can still function—after a fashion. However, life’s colors are faded. It’s more difficult to enjoy pursuits that had, not long ago, brought pleasure. We withdraw from our closest relationships.
More here. I think the lesson is not to go into divorce law, aka family law. I used to make appearances for other lawyers in family court, and I got really sad after spending just an hour in court. Many people in family court are self-represented (pro se). It is hard to see people go at each other in public, especially when kids are involved.
Saturday, April 11, 2009
NYT on Law Firms Coping with the Recession
The NYT (April 4, 2009, Adam Cohen) had an article on the legal profession and the recession:
http://www.nytimes.com/2009/04/02/opinion/02thu4.html?em
For years, law school tuition rose along with big-firm salaries. Between 1990 and 2003, the cost of private law schools rose at nearly three times the rate of consumer prices. The average graduate now leaves with more than $80,000 in debt...
More schools may follow the lead of Northwestern, the first top-tier law school to offer a two-year program.
Astute readers can see that the high debt load and the length of most legal study programs are related. The third year of law school is usually unnecessary, unless students participate mainly in clinics or other programs that provide practical experience. My third year, I worked part time in a law firm. By year three, most law students are finished with their core bar classes and are spending most of their time looking for jobs or working. How much are they paying for this privilege of looking for work, interning for free, or working part-time? About $40,000 for some private law schools.
I have always said big law firms were pyramid schemes. At some point, all pyramid schemes collapse under their own weight. You can only get so top-heavy before something gets crushed.
http://www.nytimes.com/2009/04/02/opinion/02thu4.html?em
For years, law school tuition rose along with big-firm salaries. Between 1990 and 2003, the cost of private law schools rose at nearly three times the rate of consumer prices. The average graduate now leaves with more than $80,000 in debt...
More schools may follow the lead of Northwestern, the first top-tier law school to offer a two-year program.
Astute readers can see that the high debt load and the length of most legal study programs are related. The third year of law school is usually unnecessary, unless students participate mainly in clinics or other programs that provide practical experience. My third year, I worked part time in a law firm. By year three, most law students are finished with their core bar classes and are spending most of their time looking for jobs or working. How much are they paying for this privilege of looking for work, interning for free, or working part-time? About $40,000 for some private law schools.
I have always said big law firms were pyramid schemes. At some point, all pyramid schemes collapse under their own weight. You can only get so top-heavy before something gets crushed.
Wednesday, March 4, 2009
The 4th Amendment and the Exclusionary Rule
Philip Kushner's letter on the 4th Amendment is one of the best legal letters I've seen--thanks in advance to the WSJ:
Paul H. Rubin complains that the exclusionary rule "hinders" law enforcement in detecting and prosecuting suspected crimes ("The Exclusionary Rule's Hidden Costs," op-ed, Feb. 28). He is probably right. The Bill of Rights contains many such provisions that restrict government's ability to detect and punish crime, including the right to be secure against unreasonable searches and seizures, the right to be arrested only upon probable cause, the bar against double jeopardy, the right to counsel, the right against self-incrimination, and the right to due process of law. Evidently, the Founding Fathers believed that there is a higher value than efficient law enforcement.
Paul H. Rubin complains that the exclusionary rule "hinders" law enforcement in detecting and prosecuting suspected crimes ("The Exclusionary Rule's Hidden Costs," op-ed, Feb. 28). He is probably right. The Bill of Rights contains many such provisions that restrict government's ability to detect and punish crime, including the right to be secure against unreasonable searches and seizures, the right to be arrested only upon probable cause, the bar against double jeopardy, the right to counsel, the right against self-incrimination, and the right to due process of law. Evidently, the Founding Fathers believed that there is a higher value than efficient law enforcement.
As for Prof. Rubin's claim that the exclusionary rule "encourages criminals to increase their illegal activity," that is far-fetched. Exclusion of evidence is extremely rare; exclusion of evidence that prevents prosecution and conviction is even rarer. Who engages in criminal conduct based on the assumption that the exclusionary rule will prevent their prosecution? Few citizens, including criminals, can predict when evidence will be suppressed. After the Supreme Court's recent decision in Herring v. U.S., which instructs lower court judges to engage in a kind of cost-benefit analysis in deciding whether to exclude evidence, no judge can say with confidence when evidence will be excluded either.
We have constitutional rights, many of which protect us from the government, also called law enforcement. Either we have remedies for violations of these rights or we do not. A right without a remedy is worthless.
Philip S. Kushner
Cleveland
Mr. Kushner, I have just one question: when is President Obama going to appoint you as a federal judge?
Tuesday, March 3, 2009
A Smart Counterargument to Libertarians
The Green Bag, a legal journal, just published a fantastic Almanac and Reader (2008). Law students and lawyers should read the excerpt, "Making Your Case--The Art of Persuading Judges," by Justice Antonin Scalia and Bryan Garner. Although I majored in English and took legal writing courses in law school, Scalia's excerpt is a must-read for anyone who wants to write effectively.
The entire book can be found here.
The Almanac has other wonderful articles, including one by J. Harvie Wilkinson III, "Toward One America--A Vision in Law." [page 296] Although I am inclined towards libertarianism, Wilkinson made me see why others are against the view that individual rights and self-interest reign supreme:
Let's restore a constitutional respect for community. It is futile to expect a healthy nation in the absence of a health sense of community. Community instills within us the sense that we live for something larger and more meaningful than just ourselves... Communities are built around shared purposes and values, one of which is surely a respect and appreciation for individual rights. But there must likewise be the sense that individuals contribute to, as well as take from, this larger whole of which we as single persons are but parts...
It must still be asked whether the notion of free-floating, i.e. non-textual, constitutional rights of personal autonomy has not helped to deprive us of a sense of connectedness that is indispensable to the formation of a collective identity. There is a limit to which individual intimacies should be at the sufferance of majorities, but there are likewise limits to the extent that democratic majorities in a state or nation can be deprived of the communal right to promote cherished values. To enshrine a sanctity of self in our founding charter without textual or historical warrant may be just as pernicious as the attempt to enshrine discrimination against those whose personal choices may for good and legitimate reason fail to conform to the majority's own...
When we next drive through the countryside or take a moment's pause, we might reflect on what we get from living in society. We did not build our own home; make our own car or clothes; or invent the computers, phones, lights, or appliances we not take so much for granted. Left alone, we could not enjoy a concert, educate our children, put out a fire, raise capital, or take a trip. We would, in short, be miserable and helpless. [Green Bag Almanac and Reader, 2008, at 303-304]
Wilkinson makes some good points and ultimately claims the middle ground. Continuing on the topic of good writing, he demonstrates the most effective writing style--moving your audience to a reasonable middle ground. However, I still disagree with the idea that communal rights should trump individual rights. The foundation of freedom is built upon two principles: 1) limitation of government power against its own citizens/residents; and 2) respect for the minority. Establishing a community sounds fine in theory, but when push comes to shove, the minority view is usually drowned out, and the government may run roughshod over their rights. Yet, that's precisely when the law and the courts should enter--at the inconvenient time when the majority, already backed by their elected representatives, are attempting to limit the individual's or the minority's freedom.
The law is designed for inconvenient times. When it's heart-wrenching and difficult, that's when the court's pen should be unsheathed to calm the masses and to protect the individual. When the Jehovah's Witnesses are being persecuted and beaten in the schools for not taking the oath of allegiance, that's when the Court should intervene. When a political party is castigating a minority group for a nation's troubles, that's when a strong judge must use the law and remind citizens to let others alone. When the government and the majority see outside threats and want to use torture, that's when the courts should immediately remember why they exist--to use the consistent, steadying rule of law to prevent individual oppression. (By the way, federal judge Jay Bybee and UC Berkeley Professor John Woo encouraged the Bush II administration to define torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." [p. 545] I'll take my individual rights now, please--I don't want any part of that community.)
Viewing his ideas in this light, Wilkinson sounds more like he's arguing for fascism than freedom when he talks about courts respecting the community. In times of prosperity, I would agree with him; however, it's when stress and conflict enter the picture that the rights of the individual are too often ignored in the interests of community and safety. Sadly, in almost every major conflict between community and the individual, courts have initially sided with the majority at the expense of the individual. See segregation (Plessy v. Ferguson); refusing to take the pledge of allegiance (Minersville School District v. Gobitis); Guantanamo Bay (it took seven(!) years for a court to finally reject this executive order); Chinese Exclusion Act (1882); and free speech rights (Dennis v. United States). In tough times, I wouldn't put my faith in the community--not with that historical record.
Speaking of the middle ground, Judge Henry Friendly apparently embodied it. He was said to have the "gift of moderation," the "silken string running through the pearl-chain of all virtues." [Id. at 379, Michael Boudin, "Judge Henry Friendly and the Mirror of Constitutional Law."] As an attorney, Judge Friendly seems like my kind of judge--someone who personifies moderation. We have a local judge who embodies this moderation principle, too. I have never seen him lose his temper. Even when he has gotten irritated with my inexperience, his irritation has been swift and has not prevented him from briefly explaining what I am doing wrong. I don't like to name names when it comes to judges, but Santa Clara County is lucky to have a judge like him.
Tuesday, February 10, 2009
Jury Trials in the Bay Area
The SJ Mercury News (2/05/09, 3B, Leigh Potinger) recently compiled the number of Bay Area jury trials for the fiscal year 2006-2007.
San Francisco County had 509 jury trials.
Contra Costa County had 305 jury trials.
Santa Clara County had 291 jury trials.
Alameda County had 223 jury trials.
San Mateo County had 139 jury trials.
Santa Cruz County had 59 jury trials.
Out of the thousands of cases filed, only a few make it to a jury. The most commonly cited statistic is that only 5% to 10% of cases go to trial, which I presume includes both bench and jury trials. I just completed my first jury trial where I represented an employee alleging retaliation and gender/age discrimination. Here are my thoughts:
1. If you want to win, the jury must like your client. No matter how good your case is legally, if the jury doesn't like your client, you will lose. In employment cases, performance evaluations and peer reviews can be used by either side to show that a plaintiff was either well-liked or unpopular. Although I find a lot of these reviews irrelevant, the Court will probably admit them if one of the performance factors the employer evaluates is "teamwork."
2. Even if you catch the employer/defendant in a lie, it's not over. Jurors told me that yes, I made some people look bad or shifty, but the particular misrepresentations I caught weren't big enough to deliver a slam dunk. Jurors are looking for a major lie and will disregard non-major lies. In general, making your client's supervisors look like morons isn't good enough (though it may make your client very, very happy). Lawyers should try to show that the company came up with special rules or something new or unusual to harass or retaliate against an employee. Plaintiffs' employment lawyers should also try to show their clients were doing one type of work before the discriminatory/retaliatory time period, but after a new supervisor came, they started doing another type of work.
3. Not all corporations are alike. Some corporations have good reputations. If the defendant is a used car dealership or big pharma, you'll probably have an easier time as the plaintiff. But most jurors see technology companies as non-evil. Post-trial, I heard one juror tell the defendant, "Keep making those [semiconductor] chips." I could only sigh to myself.
Big corporations also have advantages because of their pre-determined performance processes, such as giving an employee 90 days to improve performance before termination. Almost every juror mentioned that the employer went through a pre-determined termination process, which, to them, meant my client's termination was probably justified. I was surprised to see jurors acting like the company's disciplinary process was some kind of holy grail. Once again, I could only sigh. Couldn't these people see that the company might have used its internal process to exaggerate minor complaints against my client? Didn't they hear me get an employee handling the process to say he actively solicited negative information about my client? Apparently not. The corporation had involved different people at different stages, making it hard for jurors to believe there was a corporate conspiracy against my client to fire her. The jury didn't buy the idea that general corporate inertia or an poorly done investigation could result in a discriminatory termination.
4. Not even the best lawyering can save "difficult" facts. Jurors told me I did the best I could with the facts I had. It still wasn't good enough. I don't know if they were being polite, but only two jurors were willing to give me criticism. (I specifically asked jurors to tell me what I could have done better.) Overall, however, no juror seemed to think I could have done any better. They believed the semiconductor company complied with its internal procedure and, as far as they were concerned, that was the alpha and the omega.
5. Lawyers should suck up to the judge. (Or, as my friend says, "As far as you're concerned, the judge is G-d.") I know most lawyers defer to judges anyway, but as a matter of principle, I only suck up to people I genuinely like. I've learned I need to suck up to everyone during trial. Any trial, even a jury trial, isn't the best time to let out your inner George "Anti-Establishment" Carlin. Once a judge decides he dislikes your case, he can make the trial as difficult as possible for you.
For example, the defense deemed some of my questions too vague, even though the witnesses probably understood what I was asking. The judge would usually sustain the defense's objection or demand more specificity. The defense's objections caused me to add many details to my questions, making them more difficult to follow. I never anticipated a situation where my questions would be less ambiguous but more confusing. At one point, even after I specified the time period, the location, and the persons involved, the defense and judge only backed off when I looked directly at the jury and asked, "How can I possibly make the question more specific?" Some judges might disregard objections to the form of the question, but only if the attorney is moving his/her case along quickly and being very respectful to the Court. The lesson? Don't count on having your pre-drafted questions automatically accepted, even if you think a witness will understand them.
Behind the scenes, it wasn't much better. The judge wouldn't accommodate my request to take one of my witnesses out of order. Earlier, he said it was okay to take one witness out of order because of her child care responsibilities, but around two days later, he said it was my problem, not his (he's right--it is the lawyer's responsibility to have his/her witnesses available). Still, that's a major problem when the judge also tells you if you don't get done with the witness on Friday, and she can't come back on Monday, he's going to strike her entire testimony.
You haven't even heard the best part. The defense, on the day this witness was going to testify, knew about my witness availability problem and asked for an earlier lunch time. The judge granted their request and the defense got a 2 hour lunch instead of the normal 1.5 or 1.75 hours--the only time during the whole trial I remember having such a long lunch. That's about 30 minutes of precious time taken away from me. Does the jury know anything about this? Nope. So when I finally get my witness on the stand, and the judge tells me to slow down because I'm speaking too fast, I look stupid. Score one for the defense, zero for transparency. (Thankfully, the witness got done in time.)
What was really unexpected, though, was how the judge kept telling me what not to do or say. For example, my client had a male coworker who was much younger than her. I referred to this coworker as a younger male (after all, my case involved age and gender discrimination claims). Later, in chambers, the judge told me that I could no longer use the terms, "younger" and "male" when mentioning this younger male coworker in my questions. The defense hadn't requested this particular instruction--the judge, on his own, felt it was prejudicial to the defense.
Perhaps another judge would not have told me in chambers what I couldn't do (e.g., you can't read from the deposition transcript anymore--you're being too dramatic); or would not have added objections for the other side (Defense: Objection: vague, ambiguous. Judge: it's also argumentative. Sustained. Me: silently, to myself--I can't believe I actually thought I was going to get a decent shot against this major corporation and its army of lawyers.")
For the record, I do not think the judge was biased. I've had two other bench trials before him, and he ruled against my client in one case, and in favor of my client in the other case. In this (jury) trial, he was a little too involved for my liking, but that's his call.
6. Know the hearsay rule and its exceptions by heart. I was surprised at what the judge wouldn't let in. Even when I said the documents were not being offered for the truth of the matter asserted or just to show the defendant received notice of a complaint on a particular date, the judge wouldn't let in my documents. He said my witness could testify orally about the content of the emails, and the emails themselves appeared redundant. You have to be willing to get the evidence in through oral testimony, or to redact documents before asking the court to admit them. Always have a backup plan.
Remember: even if your document isn't admitted, your witness still has it in front of him because you gave him a copy that was marked for identification. Not having it admitted just means the jury can't look at it--your witness can still see the document. So don't get discouraged if a document isn't admitted--just ask a question using the information in the document, like, "On January 2, 2007, did you discuss your workload with Peter, your supervisor? A: Yes. Q: What did you discuss? A: (witness may glance at the email before answering.)"
Doing it this way, I was able to get what I wanted published to a jury, except it came through direct testimony rather than documents. Did this unorthodox method endear me to the judge? No. See paragraph 5, above.
7. The judge may disregard the CACI jury instructions. Despite CRC 2.11050(a) and (e), this judge didn't have much respect for the CACI instructions. He modified them and also accepted most of the defense's special jury instructions, which I thought diluted the impact of the more neutral CACI instructions. By the time he was done, I thought the combination of special and CACI jury instructions bore little resemblance to what the judicial council had issued. When I said the whole point of having pre-drafted jury instructions was to create uniformity and predictability, the judge muttered that I wasn't there when the Judicial Council drafted the CACI instructions.
In addition, this judge wanted us in chambers every morning before trial to discuss the jury instructions. That is ordinarily a really good idea. I just didn't expect to get up at 7:00AM every morning instead of 7:30AM. That extra 30 minutes means a lot when you need as much rest as possible.
When discussing jury instructions, you have to argue that the modified instructions mis-state the law or are prejudicial somehow. Make sure you put your objections on the record to each one. Otherwise, when the judge reads the instructions to the jury, s/he'll probably tell them all the lawyers agreed that the instructions properly state the law.
8. The evidence code stacks the deck against individual plaintiffs. The business records exception to the hearsay rule allows corporations to let in almost any document. A company can offer performance evaluations written by Person X, without ever needing to call Person X to the stand for cross-examination. Sound unfair? You're darn right it's unfair, but that's the way the code is written. To counter this defense tactic, if you're the plaintiff, you may want to subpoena people you think will criticize your client.
In addition, if plaintiff sent an email that referred to other pieces of evidence, like charts or data, the judge may demand those sections be redacted. As this judge told me, your client can't vouch for the accuracy of any of these charts or data she is referring to, so it's inadmissible hearsay. No matter what I said--state of mind, just offering it to show my client's understanding, offering it only to show that words were said on this particular date, we're not saying it's true, etc.--it didn't work. Some judges treat jurors like Pavlovian dogs who, if exposed to certain statements or words, will suddenly rule in favor of Plaintiff based on pure emotion. I find this attitude distasteful and patronizing. I see it as reducing the power of jurors to hear the full facts of a case and to decide themselves whether those facts are accurate. But I'm not a judge. My opinions don't matter.
The lesson? Don't assume you'll get any of your emails or documents in if those documents refer to anything that isn't within your client's personal knowledge. Did your client write to Human Resources that her boss made her watch porn with a coworker on the Sabbath? With some judges, you better make sure your client can identify the pornstars in the movie, the exact brand of the DVD player, and the particular way the boss was waxing his carrot before you try to get that document in. I am kidding--sort of. When in doubt, subpoena all persons who have the most direct personal knowledge on a particular point you want published to the jury.
In my case, the judge said that the charts my client sent to her boss about her workload relative to her peers were inadmissible. He said that even though my client's direct supervisor required monthly reports about the workload of my client and her coworkers; the supervisor received these reports on a regular basis; and the supervisor hadn't questioned their accuracy, it wasn't good enough. The supervisor himself had no direct personal knowledge of his employees' workload, so it was hearsay. When I said I wasn't offering it for the truth of the charts, only to show my client's good faith belief about her unbalanced workload, the judge said I was offering it for the truth, and that was that. (As you can see, judges have a lot of discretion when it comes to evidence.)
I might not have had a problem in federal court publishing company emails to the jury. According to the Hon. James Rosenbaum, District Judge for Minnesota, FRE 808 automatically allows corporate emails and trumps 403 (relevance), 602 (personal knowledge), 902 (authentication), and 803 and 804 (declarant's availability or unavailability). See 12 Green Bag 2D 165, "In Defense of Rule 808, Federal Rules of Evidence." However, I cannot find any trace of FRE 808 anywhere except in this judge's published article. A rule regulating admission of corporate communications seems long overdue. In terms of reliability, there is much difference between a handwritten note and a corporate email between a supervisor and an employee stored on a company's servers.
To be fair, no judge wants to get overturned on appeal. The way the legal system is set up, it's easier for a judge to leave out a piece of evidence than to admit it if there's even a small doubt that admitting it will prejudice the jury. Unfortunately, it's also more likely that a large corporation will have the resources to appeal, which creates systemic problems with administering justice when corporations and individuals are suing each other.
9. Be careful when putting on hostile witnesses on your own direct examination. In my case, opposing counsel used a hostile witness I called to read performance evaluations written by third parties (business records exception to hearsay rule). The defense got in damaging information about my client as part of my own case in chief. (They would have gotten in the information later on, but the timing helped them.)
10. Jurors don't want to talk to your client if they ruled against him or her. They are usually happy to talk to the lawyers, but not the actual individual who lost the case. I made the mistake of putting some jurors in an awkward position by trying to get them to talk to my client.
That's all I can think of right now. I still wish my client had prevailed. My desire in writing this post is to stimulate an informed dialogue about our legal system. Good night, and good luck.
Bonus: more on jury trials, more specifically, jury verdict forms, HERE.
Bonus: Mark Bennett discusses jury selection.
San Francisco County had 509 jury trials.
Contra Costa County had 305 jury trials.
Santa Clara County had 291 jury trials.
Alameda County had 223 jury trials.
San Mateo County had 139 jury trials.
Santa Cruz County had 59 jury trials.
Out of the thousands of cases filed, only a few make it to a jury. The most commonly cited statistic is that only 5% to 10% of cases go to trial, which I presume includes both bench and jury trials. I just completed my first jury trial where I represented an employee alleging retaliation and gender/age discrimination. Here are my thoughts:
1. If you want to win, the jury must like your client. No matter how good your case is legally, if the jury doesn't like your client, you will lose. In employment cases, performance evaluations and peer reviews can be used by either side to show that a plaintiff was either well-liked or unpopular. Although I find a lot of these reviews irrelevant, the Court will probably admit them if one of the performance factors the employer evaluates is "teamwork."
2. Even if you catch the employer/defendant in a lie, it's not over. Jurors told me that yes, I made some people look bad or shifty, but the particular misrepresentations I caught weren't big enough to deliver a slam dunk. Jurors are looking for a major lie and will disregard non-major lies. In general, making your client's supervisors look like morons isn't good enough (though it may make your client very, very happy). Lawyers should try to show that the company came up with special rules or something new or unusual to harass or retaliate against an employee. Plaintiffs' employment lawyers should also try to show their clients were doing one type of work before the discriminatory/retaliatory time period, but after a new supervisor came, they started doing another type of work.
3. Not all corporations are alike. Some corporations have good reputations. If the defendant is a used car dealership or big pharma, you'll probably have an easier time as the plaintiff. But most jurors see technology companies as non-evil. Post-trial, I heard one juror tell the defendant, "Keep making those [semiconductor] chips." I could only sigh to myself.
Big corporations also have advantages because of their pre-determined performance processes, such as giving an employee 90 days to improve performance before termination. Almost every juror mentioned that the employer went through a pre-determined termination process, which, to them, meant my client's termination was probably justified. I was surprised to see jurors acting like the company's disciplinary process was some kind of holy grail. Once again, I could only sigh. Couldn't these people see that the company might have used its internal process to exaggerate minor complaints against my client? Didn't they hear me get an employee handling the process to say he actively solicited negative information about my client? Apparently not. The corporation had involved different people at different stages, making it hard for jurors to believe there was a corporate conspiracy against my client to fire her. The jury didn't buy the idea that general corporate inertia or an poorly done investigation could result in a discriminatory termination.
4. Not even the best lawyering can save "difficult" facts. Jurors told me I did the best I could with the facts I had. It still wasn't good enough. I don't know if they were being polite, but only two jurors were willing to give me criticism. (I specifically asked jurors to tell me what I could have done better.) Overall, however, no juror seemed to think I could have done any better. They believed the semiconductor company complied with its internal procedure and, as far as they were concerned, that was the alpha and the omega.
5. Lawyers should suck up to the judge. (Or, as my friend says, "As far as you're concerned, the judge is G-d.") I know most lawyers defer to judges anyway, but as a matter of principle, I only suck up to people I genuinely like. I've learned I need to suck up to everyone during trial. Any trial, even a jury trial, isn't the best time to let out your inner George "Anti-Establishment" Carlin. Once a judge decides he dislikes your case, he can make the trial as difficult as possible for you.
For example, the defense deemed some of my questions too vague, even though the witnesses probably understood what I was asking. The judge would usually sustain the defense's objection or demand more specificity. The defense's objections caused me to add many details to my questions, making them more difficult to follow. I never anticipated a situation where my questions would be less ambiguous but more confusing. At one point, even after I specified the time period, the location, and the persons involved, the defense and judge only backed off when I looked directly at the jury and asked, "How can I possibly make the question more specific?" Some judges might disregard objections to the form of the question, but only if the attorney is moving his/her case along quickly and being very respectful to the Court. The lesson? Don't count on having your pre-drafted questions automatically accepted, even if you think a witness will understand them.
Behind the scenes, it wasn't much better. The judge wouldn't accommodate my request to take one of my witnesses out of order. Earlier, he said it was okay to take one witness out of order because of her child care responsibilities, but around two days later, he said it was my problem, not his (he's right--it is the lawyer's responsibility to have his/her witnesses available). Still, that's a major problem when the judge also tells you if you don't get done with the witness on Friday, and she can't come back on Monday, he's going to strike her entire testimony.
You haven't even heard the best part. The defense, on the day this witness was going to testify, knew about my witness availability problem and asked for an earlier lunch time. The judge granted their request and the defense got a 2 hour lunch instead of the normal 1.5 or 1.75 hours--the only time during the whole trial I remember having such a long lunch. That's about 30 minutes of precious time taken away from me. Does the jury know anything about this? Nope. So when I finally get my witness on the stand, and the judge tells me to slow down because I'm speaking too fast, I look stupid. Score one for the defense, zero for transparency. (Thankfully, the witness got done in time.)
What was really unexpected, though, was how the judge kept telling me what not to do or say. For example, my client had a male coworker who was much younger than her. I referred to this coworker as a younger male (after all, my case involved age and gender discrimination claims). Later, in chambers, the judge told me that I could no longer use the terms, "younger" and "male" when mentioning this younger male coworker in my questions. The defense hadn't requested this particular instruction--the judge, on his own, felt it was prejudicial to the defense.
Perhaps another judge would not have told me in chambers what I couldn't do (e.g., you can't read from the deposition transcript anymore--you're being too dramatic); or would not have added objections for the other side (Defense: Objection: vague, ambiguous. Judge: it's also argumentative. Sustained. Me: silently, to myself--I can't believe I actually thought I was going to get a decent shot against this major corporation and its army of lawyers.")
For the record, I do not think the judge was biased. I've had two other bench trials before him, and he ruled against my client in one case, and in favor of my client in the other case. In this (jury) trial, he was a little too involved for my liking, but that's his call.
6. Know the hearsay rule and its exceptions by heart. I was surprised at what the judge wouldn't let in. Even when I said the documents were not being offered for the truth of the matter asserted or just to show the defendant received notice of a complaint on a particular date, the judge wouldn't let in my documents. He said my witness could testify orally about the content of the emails, and the emails themselves appeared redundant. You have to be willing to get the evidence in through oral testimony, or to redact documents before asking the court to admit them. Always have a backup plan.
Remember: even if your document isn't admitted, your witness still has it in front of him because you gave him a copy that was marked for identification. Not having it admitted just means the jury can't look at it--your witness can still see the document. So don't get discouraged if a document isn't admitted--just ask a question using the information in the document, like, "On January 2, 2007, did you discuss your workload with Peter, your supervisor? A: Yes. Q: What did you discuss? A: (witness may glance at the email before answering.)"
Doing it this way, I was able to get what I wanted published to a jury, except it came through direct testimony rather than documents. Did this unorthodox method endear me to the judge? No. See paragraph 5, above.
7. The judge may disregard the CACI jury instructions. Despite CRC 2.11050(a) and (e), this judge didn't have much respect for the CACI instructions. He modified them and also accepted most of the defense's special jury instructions, which I thought diluted the impact of the more neutral CACI instructions. By the time he was done, I thought the combination of special and CACI jury instructions bore little resemblance to what the judicial council had issued. When I said the whole point of having pre-drafted jury instructions was to create uniformity and predictability, the judge muttered that I wasn't there when the Judicial Council drafted the CACI instructions.
In addition, this judge wanted us in chambers every morning before trial to discuss the jury instructions. That is ordinarily a really good idea. I just didn't expect to get up at 7:00AM every morning instead of 7:30AM. That extra 30 minutes means a lot when you need as much rest as possible.
When discussing jury instructions, you have to argue that the modified instructions mis-state the law or are prejudicial somehow. Make sure you put your objections on the record to each one. Otherwise, when the judge reads the instructions to the jury, s/he'll probably tell them all the lawyers agreed that the instructions properly state the law.
8. The evidence code stacks the deck against individual plaintiffs. The business records exception to the hearsay rule allows corporations to let in almost any document. A company can offer performance evaluations written by Person X, without ever needing to call Person X to the stand for cross-examination. Sound unfair? You're darn right it's unfair, but that's the way the code is written. To counter this defense tactic, if you're the plaintiff, you may want to subpoena people you think will criticize your client.
In addition, if plaintiff sent an email that referred to other pieces of evidence, like charts or data, the judge may demand those sections be redacted. As this judge told me, your client can't vouch for the accuracy of any of these charts or data she is referring to, so it's inadmissible hearsay. No matter what I said--state of mind, just offering it to show my client's understanding, offering it only to show that words were said on this particular date, we're not saying it's true, etc.--it didn't work. Some judges treat jurors like Pavlovian dogs who, if exposed to certain statements or words, will suddenly rule in favor of Plaintiff based on pure emotion. I find this attitude distasteful and patronizing. I see it as reducing the power of jurors to hear the full facts of a case and to decide themselves whether those facts are accurate. But I'm not a judge. My opinions don't matter.
The lesson? Don't assume you'll get any of your emails or documents in if those documents refer to anything that isn't within your client's personal knowledge. Did your client write to Human Resources that her boss made her watch porn with a coworker on the Sabbath? With some judges, you better make sure your client can identify the pornstars in the movie, the exact brand of the DVD player, and the particular way the boss was waxing his carrot before you try to get that document in. I am kidding--sort of. When in doubt, subpoena all persons who have the most direct personal knowledge on a particular point you want published to the jury.
In my case, the judge said that the charts my client sent to her boss about her workload relative to her peers were inadmissible. He said that even though my client's direct supervisor required monthly reports about the workload of my client and her coworkers; the supervisor received these reports on a regular basis; and the supervisor hadn't questioned their accuracy, it wasn't good enough. The supervisor himself had no direct personal knowledge of his employees' workload, so it was hearsay. When I said I wasn't offering it for the truth of the charts, only to show my client's good faith belief about her unbalanced workload, the judge said I was offering it for the truth, and that was that. (As you can see, judges have a lot of discretion when it comes to evidence.)
I might not have had a problem in federal court publishing company emails to the jury. According to the Hon. James Rosenbaum, District Judge for Minnesota, FRE 808 automatically allows corporate emails and trumps 403 (relevance), 602 (personal knowledge), 902 (authentication), and 803 and 804 (declarant's availability or unavailability). See 12 Green Bag 2D 165, "In Defense of Rule 808, Federal Rules of Evidence." However, I cannot find any trace of FRE 808 anywhere except in this judge's published article. A rule regulating admission of corporate communications seems long overdue. In terms of reliability, there is much difference between a handwritten note and a corporate email between a supervisor and an employee stored on a company's servers.
To be fair, no judge wants to get overturned on appeal. The way the legal system is set up, it's easier for a judge to leave out a piece of evidence than to admit it if there's even a small doubt that admitting it will prejudice the jury. Unfortunately, it's also more likely that a large corporation will have the resources to appeal, which creates systemic problems with administering justice when corporations and individuals are suing each other.
9. Be careful when putting on hostile witnesses on your own direct examination. In my case, opposing counsel used a hostile witness I called to read performance evaluations written by third parties (business records exception to hearsay rule). The defense got in damaging information about my client as part of my own case in chief. (They would have gotten in the information later on, but the timing helped them.)
10. Jurors don't want to talk to your client if they ruled against him or her. They are usually happy to talk to the lawyers, but not the actual individual who lost the case. I made the mistake of putting some jurors in an awkward position by trying to get them to talk to my client.
That's all I can think of right now. I still wish my client had prevailed. My desire in writing this post is to stimulate an informed dialogue about our legal system. Good night, and good luck.
Bonus: more on jury trials, more specifically, jury verdict forms, HERE.
Bonus: Mark Bennett discusses jury selection.
Monday, February 9, 2009
Law Firms Freeze Salaries
The NY Times talks about salary freezes at law firms:
http://www.nytimes.com/2009/01/25/jobs/25lawyers.html?_r=1
I found the section on legal salaries illuminating:
According to the National Association for Law Placement, 16 percent of the class of 2007 law school graduates employed full time make $160,000 or more, while 38 percent make $55,000 or less.
If you do the math, 46% of new lawyers make between 55K and 160K. Assuming most mid-sized and small law firms pay around 70K starting, 84% of new lawyers probably make between 25K and 70K. If you're a law school student, remember those salary numbers when you're taking out loans and dining out. Cut back on expenses while in law school, and you'll have an easier time paying off debt if you don't land the big firm position or the big money position right away.
I managed to pay off my loans fairly soon after law school because I practiced self-denial religiously. For example, I ate PB&J almost every day in law school and for a year after law school. I also didn't go to Starbucks or Peet's more than once a month while in law school. Anyway, I haven't had a PB&J sandwich in a long time. Like the 99 cent Jack in the Box chicken sandwich I ate all the time while at UC Davis, it tastes like poverty--disgusting and dry. But these days, I go to Peet's and drop three bucks on coffee almost every day. It doesn't sound like much, but if I hadn't denied myself the good things in life while in law school, I'd still be eating PB&J and drinking fountain water for lunch and dinner.
http://www.nytimes.com/2009/01/25/jobs/25lawyers.html?_r=1
I found the section on legal salaries illuminating:
According to the National Association for Law Placement, 16 percent of the class of 2007 law school graduates employed full time make $160,000 or more, while 38 percent make $55,000 or less.
If you do the math, 46% of new lawyers make between 55K and 160K. Assuming most mid-sized and small law firms pay around 70K starting, 84% of new lawyers probably make between 25K and 70K. If you're a law school student, remember those salary numbers when you're taking out loans and dining out. Cut back on expenses while in law school, and you'll have an easier time paying off debt if you don't land the big firm position or the big money position right away.
I managed to pay off my loans fairly soon after law school because I practiced self-denial religiously. For example, I ate PB&J almost every day in law school and for a year after law school. I also didn't go to Starbucks or Peet's more than once a month while in law school. Anyway, I haven't had a PB&J sandwich in a long time. Like the 99 cent Jack in the Box chicken sandwich I ate all the time while at UC Davis, it tastes like poverty--disgusting and dry. But these days, I go to Peet's and drop three bucks on coffee almost every day. It doesn't sound like much, but if I hadn't denied myself the good things in life while in law school, I'd still be eating PB&J and drinking fountain water for lunch and dinner.
Wednesday, February 4, 2009
Law Firms Not Immune to Recession
The WSJ had a great article on recessions and law firms:
http://online.wsj.com/article/SB123292954232713979.html
What really interests me is the assumptions these now-defunct law firms made. For example, why were they so confident that complex cases, like the Microsoft anti-trust matter, would continue indefinitely? Didn't they realize at some point, all those associates had to work on other cases to bill a sufficient number of hours?
It looks like the recession bankrupted law firms that were inefficient and that failed to diversify. What's the lesson? Whoever ignores the rule of "not putting all your eggs in one basket" does so at his own peril. In law and in stocks, it pays to diversify.
http://online.wsj.com/article/SB123292954232713979.html
What really interests me is the assumptions these now-defunct law firms made. For example, why were they so confident that complex cases, like the Microsoft anti-trust matter, would continue indefinitely? Didn't they realize at some point, all those associates had to work on other cases to bill a sufficient number of hours?
It looks like the recession bankrupted law firms that were inefficient and that failed to diversify. What's the lesson? Whoever ignores the rule of "not putting all your eggs in one basket" does so at his own peril. In law and in stocks, it pays to diversify.
Sunday, February 1, 2009
Judge to Juror: "Hi Mom"
This blog post, about a judge who keeps his mom on the jury, is fun to read:
http://jurylaw.typepad.com/deliberations/2008/04/judges-mother-o.html
Small towns seem like interesting places.
http://jurylaw.typepad.com/deliberations/2008/04/judges-mother-o.html
Small towns seem like interesting places.
Thursday, January 29, 2009
Reason #4083 to Reconsider Law School
This CNN article isn't against going to law school; however, it still imparts a good lesson about when to go:
http://www.cnn.com/2009/LIVING/01/28/jobloss.hard.times/index.html
In July 2007, when [she] traded in her job as a corporate compliance officer [making 80K] to attend law school, she thought would help advance her career. But after a year of law school, she decided it wasn't for her. By then, her old job was gone and the job market had shrunk.
Basically, if you want to go to law school, wait until there's a recession. Don't do it when you have a good-paying job. Law school requires a lot of money, so you're shelling out beacoup bucks to pay for tuition. But that out of pocket cost isn't the only loss you have when you attend any school full-time. In addition to "losing" the money you spend on tuition, you lose in terms of opportunity cost. Basically, by attending law school full time, you lose time you would otherwise have to work and earn money. So it's a double loss. You're paying for tuition AND you're not making money someplace else.
The bottom line? Be sure you want to go to law school before you go. Most people cannot discharge student loans in bankruptcy, but they may be able to get a deferment. The woman in the CNN article probably owes at least ten grand in student loans. Sigh.
http://www.cnn.com/2009/LIVING/01/28/jobloss.hard.times/index.html
In July 2007, when [she] traded in her job as a corporate compliance officer [making 80K] to attend law school, she thought would help advance her career. But after a year of law school, she decided it wasn't for her. By then, her old job was gone and the job market had shrunk.
Basically, if you want to go to law school, wait until there's a recession. Don't do it when you have a good-paying job. Law school requires a lot of money, so you're shelling out beacoup bucks to pay for tuition. But that out of pocket cost isn't the only loss you have when you attend any school full-time. In addition to "losing" the money you spend on tuition, you lose in terms of opportunity cost. Basically, by attending law school full time, you lose time you would otherwise have to work and earn money. So it's a double loss. You're paying for tuition AND you're not making money someplace else.
The bottom line? Be sure you want to go to law school before you go. Most people cannot discharge student loans in bankruptcy, but they may be able to get a deferment. The woman in the CNN article probably owes at least ten grand in student loans. Sigh.
Friday, January 16, 2009
Anthony Bourdain on the Decline of Meritocracy
I don't usually recommend television shows, but Anthony Bourdain's "No Reservations" is just too good to keep to myself. When I first saw Bourdain's show, I couldn't stand him. Fortunately, Bourdain is a quickly acquired taste, and by the second show, I couldn't get enough. Some people see Bourdain as a snarky alcoholic who gets paid to go around the world and eat for a living. Others, however, see him as confident America personified--unafraid of the foreign, friendly to all, direct, irreverent, and eager to socialize (preferably where alcohol is involved).
If you, like author Chuck Thompson (Smile When You're Lying), are disenchanted with the sanitized media, check out "No Reservations." In one of his best shows, Bourdain travels to Colombia. In between bites, we are treated to stories about Pablo Escobar, a local rap group, and the evolution of Colombia itself. (Other fans praise the Vietnam show as his best, but I haven't seen it yet.)
Bourdain's funniest moments seem to take place in cold weather. In Sweden, after a night out on the tundra, Bourdain goes on a hilarious 30 second monologue about how he wants to be called "Giver of life," because his cigarette lighter provided fire for his crew. In Iceland, Bourdain is looking forward to an annual party, and when it's nothing like promised, he gets drunk and proceeds to mock the entire event. At one point, he busts out his lighter in tribute to an Icelandic a capella group. Later, he names a horse Sarah Jessica Parker (she has a long face).
Mr. Bourdain also has a blog. [Update: looks like link has changed to here: https://www.travelchannel.com/shows/anthony-bourdain/articles/]
Bonus: here is a fantastic salon.com 2006 interview with him. My favorite excerpts are below:
On Bourdain's intense dislike for Rachael Ray:
Q: Will we see you in a year saying, "Oh, I had drinks with Rachael Ray, and actually, she's all right"?
A: Yeah, right. "After the hot-tub incident, I've changed my mind." You know, listen, like I said, I could be wrong. Unlikely. But maybe she's nice to puppies...[Anyway,] If I ever saw her getting trashed on Old Crow, pistol-whipping a vegan after a bar crawl, I would think, "That's an interesting woman. I would like to know her."
[Bonus: https://www.salon.com/2006/10/05/ruhlman_bourdain_foie/]
On immigration:
Listen, in 25 years, I don't remember ever seeing an American-born kid of any income level walk into my restaurant, or any restaurant owned by any of my friends, and ask, Do you have a dishwasher job, or a prep job, or a job for a kitchen porter? We're not willing to do it. If somebody else wants to come over here and do it, that's fine with me...
If you, like author Chuck Thompson (Smile When You're Lying), are disenchanted with the sanitized media, check out "No Reservations." In one of his best shows, Bourdain travels to Colombia. In between bites, we are treated to stories about Pablo Escobar, a local rap group, and the evolution of Colombia itself. (Other fans praise the Vietnam show as his best, but I haven't seen it yet.)
Bourdain's funniest moments seem to take place in cold weather. In Sweden, after a night out on the tundra, Bourdain goes on a hilarious 30 second monologue about how he wants to be called "Giver of life," because his cigarette lighter provided fire for his crew. In Iceland, Bourdain is looking forward to an annual party, and when it's nothing like promised, he gets drunk and proceeds to mock the entire event. At one point, he busts out his lighter in tribute to an Icelandic a capella group. Later, he names a horse Sarah Jessica Parker (she has a long face).
Mr. Bourdain also has a blog. [Update: looks like link has changed to here: https://www.travelchannel.com/shows/anthony-bourdain/articles/]
Bonus: here is a fantastic salon.com 2006 interview with him. My favorite excerpts are below:
On Bourdain's intense dislike for Rachael Ray:
Q: Will we see you in a year saying, "Oh, I had drinks with Rachael Ray, and actually, she's all right"?
A: Yeah, right. "After the hot-tub incident, I've changed my mind." You know, listen, like I said, I could be wrong. Unlikely. But maybe she's nice to puppies...[Anyway,] If I ever saw her getting trashed on Old Crow, pistol-whipping a vegan after a bar crawl, I would think, "That's an interesting woman. I would like to know her."
[Bonus: https://www.salon.com/2006/10/05/ruhlman_bourdain_foie/]
On immigration:
Listen, in 25 years, I don't remember ever seeing an American-born kid of any income level walk into my restaurant, or any restaurant owned by any of my friends, and ask, Do you have a dishwasher job, or a prep job, or a job for a kitchen porter? We're not willing to do it. If somebody else wants to come over here and do it, that's fine with me...
I also like the idea of people from other places coming to our country and multiplying. It makes for better food, higher expectations, more diversity and cuter people. Foreigners should come to our country and have sex with our womenfolk.
On how laws, P.C., and regulations are driving Americans apart and reducing merit-based values:
I think it's great that kitchens are maybe the last meritocracy, the last workplace where men and women can speak to each other honestly, however offensively that might be, where your value is only in how well you do your job and how well you can talk shit back at somebody. I see that as an admirable quality. I don't like the idea of tiptoeing around each other. I think that if you say something stupid and offensive, somebody should get right up in your face and say, "That was incredibly stupid and offensive, and f**k you too!" Once you enforce it, bring in the human resources department, everybody goes home to their own neighborhoods, and we never really talk.
On how laws, P.C., and regulations are driving Americans apart and reducing merit-based values:
I think it's great that kitchens are maybe the last meritocracy, the last workplace where men and women can speak to each other honestly, however offensively that might be, where your value is only in how well you do your job and how well you can talk shit back at somebody. I see that as an admirable quality. I don't like the idea of tiptoeing around each other. I think that if you say something stupid and offensive, somebody should get right up in your face and say, "That was incredibly stupid and offensive, and f**k you too!" Once you enforce it, bring in the human resources department, everybody goes home to their own neighborhoods, and we never really talk.
[More on kitchens as meritocracies here (Judy Joo, 1/22/09, WSJ, "Out of the Fire, Into the Frying Pan").]
Author's note: Bourdain's paragraph above really appeals to me. I am usually non-confrontational, so it's hard to tell my stance on most issues. However, despite my generally flexible nature, I am steadfast when it comes to the idea of meritocracy. Judging people based on their work, not their beliefs, should be the norm, not the exception. As a lawyer, for example, I don't care what a judge's political affiliation is, as long as s/he reads the pleadings. I don't even care if I lose, as long as the rationale makes sense. But give me a judge who's lazy, who got his/her job through charisma rather than hard work, and who relies entirely on law clerks, and it's all I can do not to have a Tourette's "incident" during oral argument and an anger-induced aneurysm afterwards.
Unfortunately, many judges, because of the political nature of the appointment process, got their jobs through charisma rather than a widely-acknowledged work ethic. Once on the bench, judges are given highly trained staff who prepare advisory legal memos on each case. Because of these law clerks--who initially have more overall substantive legal knowledge than the judge--the incentive to read litigants' pleadings is removed. Predictably, most judges lapse into a titular position, where they rubberstamp their clerks' opinions or memorandums of law.
Unfortunately, many judges, because of the political nature of the appointment process, got their jobs through charisma rather than a widely-acknowledged work ethic. Once on the bench, judges are given highly trained staff who prepare advisory legal memos on each case. Because of these law clerks--who initially have more overall substantive legal knowledge than the judge--the incentive to read litigants' pleadings is removed. Predictably, most judges lapse into a titular position, where they rubberstamp their clerks' opinions or memorandums of law.
In fact, if you were to put a camera above most judges during oral argument, you'd see only a legal memo prepared by a law clerk. The judge usually doesn't open any of the case files, unless an attorney specifically mentions an exhibit or particular page. Also, a judge knows that if s/he changes a law clerk's proposed opinion, either the clerk or the judge must spend time drafting a brand new opinion. As a result, changing a clerk's proposed opinion creates work (and trouble) for everyone. In this way, the "memo" system fundamentally changes oral argument and the legal system. Rather than seek the truth or a just result, the judge's job becomes corralling the attorneys into the confines of the law clerk's memo.
Inevitably, the "memo" system results in a clash between hard-working lawyers and judges who don't read the pleadings. That's because the "memo" system is fine if you're a bad or lazy lawyer--you get treated the same as a lawyer who's spent hours reading every single case cited in the papers and who knows every detail of his/her case. It's like going to a class with a teacher who doesn't prepare for a lecture and who treats all the kids the same--regardless of whether they did their homework perfectly or didn't bothering opening a textbook. If you're a student in that class, you can't help but be upset.
First, your teacher just got paid taxpayer money for showing up unprepared. Second, your teacher is wasting your time because s/he has nothing to offer. You could have spent the day doing productive, money-generating activities, but you can't, because you have to spend time preparing in case the teacher does have questions, and you have to spend time attending the class. Third, even if the best students don't get discouraged, they are less motivated to do their best. Good students like being pushed--lazy ones don't. Fourth, anyone who cares about the schooling system as a whole should get upset. By failing to work hard, your teacher is incentivizing his/her students to be unprepared or to submit shoddy work. Predictably, everyone starts slouching towards mediocrity, because unprepared teachers discourage students who ask questions or who are passionate about a topic. There's no point in having any substantive interaction anyway, because the unprepared teacher's job isn't to get the truth or the proper result--it's to get the students to be quiet and accept the findings in his/her research assistant's memo. (Some teachers, if they're particularly devious, will try to embarrass vocal students by having arbitrary decorum rules. Such rules allow teachers to divert attention from substantive matters when in a tough spot, while also making well-prepared students appear ill-mannered.) Thus, the purpose of the schooling system--to create an environment that encourages achievement and well-informed debate to maximize accurate results--is perverted, all on the taxpayer's dime. Change teachers to judges, research assistants to law clerks, and students to lawyers, and you might have an accurate metaphor for how our current judicial system works.
To be fair, most law clerks are quite good (almost all of them graduated at the top of their class). They're usually sitting in the back of the courtroom, silently viewing oral arguments. In the current judicial system, good lawyers learn that their job is to divine what the semi-invisible law clerk wants, not the judge. There are at least two major problems with this delegation of judicial work:
1. There is no way for an attorney to question the clerks; in fact, one federal court refused to even give me a clerk's name after I protested the court's refusal to have a hearing.
2. Most clerks usually have no law firm experience, so they don't know much about the actual practice of law. This can result in a new or pusillanimous clerk making a credibility determination based on the size or prestige of a firm rather than the merits of the case. It also results in a system that is disinclined to take any risks, no matter how small. (Better to "split the baby" and award something to each side, even if one side is completely correct. No one will protest too much, except perhaps the client--who is mostly invisible until trial.) Good lawyers quickly learn they need to prepare their clients for settlement--no matter how good or bad the case.
As for judges, they continue to have little incentive to read any of the pleadings. For example, I had one case where a judge got the name of my client's supervisor wrong--even though I had quoted her numerous times in my papers, and her testimony was our main source of evidence. Lest you think this was a routine motion, it was a dispositive motion that eventually dismissed my client's entire case. (This judge's colleague once said the judge isn't enamored with "motion work," and prefers to spend his time on trials. That's fine, except if your law clerk is the only one reading the pleadings, s/he decides whether you have a trial.) I've had a case where a judge pointed to my PO Box mailing address on my pleading caption, thinking I didn't have an office address. (After the first page, my papers actually listed my office address.) I could go on, but I'll spare my readers.
In any case, judging people on their work ethic is the clear solution to solving the timeless issues of racism, sexism, etc. I don't mean we should have a nation of Orwellian Boxers--the result counts, too. But make no mistake--without affirming work ethic as our primary value, we will rely on our prejudices and lesser angels to make decisions, leading to a decline in merit-based progress. Down the road, we'll realize that when meritocracy goes, down goes any nation--and by then, it will be too late.
And on that note, here is a paragraph attributed to Bourdain I can relate to, sans the Mary Jane:
In any case, judging people on their work ethic is the clear solution to solving the timeless issues of racism, sexism, etc. I don't mean we should have a nation of Orwellian Boxers--the result counts, too. But make no mistake--without affirming work ethic as our primary value, we will rely on our prejudices and lesser angels to make decisions, leading to a decline in merit-based progress. Down the road, we'll realize that when meritocracy goes, down goes any nation--and by then, it will be too late.
And on that note, here is a paragraph attributed to Bourdain I can relate to, sans the Mary Jane:
I know there's deep inside (me) some lazy hippie who'd be perfectly happy to lay on the couch, smoke weed and watch The Simpsons all day - I'm really afraid of that guy. I don't like him. I don't want him around. And my whole life is kind of constructed to avoid reverting to that guy: Stay busy. Stay focused. Try not to mess up.
Update on February 4, 2009: I forgot an essential element that needs to accompany work ethic--self-restraint. Without self-restraint, having a wonderful work ethic could mean Germany gearing up for WWII.
Friday, January 9, 2009
Reason #2536 You Might Reconsider Law School
From the California Lawyer magazine (January 2009, page 34):
[L]awyers, as a group, have their own unique set of characteristics. For one thing, they are famously prone to depression. A frequently cited Johns Hopkins University study from 1991 found that among more than 100 occupations surveyed, attorneys topped the list for having major depressive disorders, suffering from depression at a rate 3.6 times higher than the general employed population..."You see figures that 20 to 25 percent of lawyers have an alcohol problem," says [Carol] Langford [who practices state bar defense]. "I think it's more like 40 percent."
When I went into law, I thought I could change the world. My thinking proved to be naive, as I learned about insurance, bankruptcy, overloaded court dockets, and procedure over substance. Hearing about my initial desire to change the world, one of my friends, also a lawyer, told me, with a kind laugh, "The world changed you." There's a lesson in there somewhere, but knowing I'm a positive agent in most of my clients' lives keeps me going. Like everything else, the legal profession is what you make of it.
_____________
As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough. -- Abraham Lincoln
Thanks to the Hon. Judge Morgan of the United States Bankruptcy Court (Northern District of California) for posting Lincoln's "Notes for a Law Lecture" outside her courtroom, where I and many other lawyers have discovered the above words.
[L]awyers, as a group, have their own unique set of characteristics. For one thing, they are famously prone to depression. A frequently cited Johns Hopkins University study from 1991 found that among more than 100 occupations surveyed, attorneys topped the list for having major depressive disorders, suffering from depression at a rate 3.6 times higher than the general employed population..."You see figures that 20 to 25 percent of lawyers have an alcohol problem," says [Carol] Langford [who practices state bar defense]. "I think it's more like 40 percent."
When I went into law, I thought I could change the world. My thinking proved to be naive, as I learned about insurance, bankruptcy, overloaded court dockets, and procedure over substance. Hearing about my initial desire to change the world, one of my friends, also a lawyer, told me, with a kind laugh, "The world changed you." There's a lesson in there somewhere, but knowing I'm a positive agent in most of my clients' lives keeps me going. Like everything else, the legal profession is what you make of it.
_____________
As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough. -- Abraham Lincoln
Thanks to the Hon. Judge Morgan of the United States Bankruptcy Court (Northern District of California) for posting Lincoln's "Notes for a Law Lecture" outside her courtroom, where I and many other lawyers have discovered the above words.
Tuesday, January 6, 2009
Religious Profiling
A t-shirt with Arabic script? 10 dollars. TSA costing taxpayers 240,000 dollars because of its ignorance? Well, 240,000 dollars. Government ineptitude in action? Timeless.
I wish the article mentioned the name of the attorneys handling the case [Update: according to the ACLU's website, the attorneys were Aden Fine, Reginald Shuford, Dennis Parker, Director of the ACLU Racial Justice Program, and Palyn Hung of the NYCLU]. Raed Jarrar was the plaintiff.
I was laughing at the TSA's stupidity until this line: "Last week, nine Muslims, including three children, were ordered off a domestic US flight after passengers heard what they believed were suspicious remarks about security...[E]ight of them [were] US citizens, were cleared by the FBI, [but] they were reportedly still barred from the AirTran flight."
"If the pilot is uncomfortable with someone flying on their plane, that's their decision," said Christopher White, a federal Transportation Security Administration spokesman. Is the TSA serious? Under their logic, if you pay for a ticket, and you say something the driver/pilot doesn't like, or you just happen to look at him the wrong way, s/he has the complete discretion to kick you off. Sounds like another lawsuit is in order.
Update: here's a link to more information, including a neat vid:
http://www.aclu.org/freespeech/gen/jarrar.html
Hat tip to Political Colors for the link.
I wish the article mentioned the name of the attorneys handling the case [Update: according to the ACLU's website, the attorneys were Aden Fine, Reginald Shuford, Dennis Parker, Director of the ACLU Racial Justice Program, and Palyn Hung of the NYCLU]. Raed Jarrar was the plaintiff.
I was laughing at the TSA's stupidity until this line: "Last week, nine Muslims, including three children, were ordered off a domestic US flight after passengers heard what they believed were suspicious remarks about security...[E]ight of them [were] US citizens, were cleared by the FBI, [but] they were reportedly still barred from the AirTran flight."
"If the pilot is uncomfortable with someone flying on their plane, that's their decision," said Christopher White, a federal Transportation Security Administration spokesman. Is the TSA serious? Under their logic, if you pay for a ticket, and you say something the driver/pilot doesn't like, or you just happen to look at him the wrong way, s/he has the complete discretion to kick you off. Sounds like another lawsuit is in order.
Update: here's a link to more information, including a neat vid:
http://www.aclu.org/freespeech/gen/jarrar.html
Hat tip to Political Colors for the link.
Law Students: Caveat Emptor
This WSJ article, from 9/24/08, has information for aspiring attorneys:
http://online.wsj.com/public/article_print/SB119040786780835602.html
He's making less money than at his last job and has thought about moving back to his parents' house. "I didn't think three years out I'd be uninsured, thinking it's a great day when a crackhead brings me $500."
http://online.wsj.com/public/article_print/SB119040786780835602.html
He's making less money than at his last job and has thought about moving back to his parents' house. "I didn't think three years out I'd be uninsured, thinking it's a great day when a crackhead brings me $500."
Monday, January 5, 2009
Law and Verdicts
Below are recent stats for employment discrimination jury verdicts. Remember, these only apply if the case actually goes to trial.
In 2007, the median discrimination verdict rose some 70 percent to $252,000 from $147,000 in 2006.
Employers won only 38% of discrimination cases in 2007, prevailing most often in race discrimination cases (43 percent) and losing most frequently in sex discrimination cases (30 percent).
Employers in the manufacturing and industrial sectors had the biggest verdicts, followed by the government, transportation and service sectors.
Source: Employment Practice Liability: Jury Award Trends and Statistics, 2008 report by Jury Verdict Research.
In 2007, the median discrimination verdict rose some 70 percent to $252,000 from $147,000 in 2006.
Employers won only 38% of discrimination cases in 2007, prevailing most often in race discrimination cases (43 percent) and losing most frequently in sex discrimination cases (30 percent).
Employers in the manufacturing and industrial sectors had the biggest verdicts, followed by the government, transportation and service sectors.
Source: Employment Practice Liability: Jury Award Trends and Statistics, 2008 report by Jury Verdict Research.
Wednesday, December 17, 2008
To Aspiring Lawyers
Many lawyers who cannot find permanent work do temp work. Most of these temporary jobs are projects involving document review. It's not exciting work, but some projects pay well, and the work is a necessary part of litigation. There are so many temp attorneys, there is even a website dedicated to them at temporaryattorney.blogspot.com.With the number of lawyers increasing with every annual law school graduation and more work being outsourced to capable Indian attorneys, law is no longer a stable profession where most entrants earn a steady paycheck:
http://temporaryattorney.blogspot.com/2008/08/we-should-have-become-plumbers.html
The Temp Attorney post links to a WSJ article that shows that a degree isn't what it used to be. On the bright side, the chart above shows that at some point--many years later--a college degree finally pays off. Still, I can't help but think that the American education system is broken.
First, the paper-pushing jobs--bankers, lawyers, etc.--make more than engineers and doctors, people who provide vital services or who spearhead innovation. As a result, many intelligent young people go into law--which produces no innovation--rather than nursing, engineering, or science. On some level, that's a wise decision--it's easy for companies to hire engineers in other countries for much less. At the same time, it seems strange that America's job market incentivizes students to go into non-innovative professions rather than innovative ones.
Second, many high schools do not teach their students useful subjects, or they encourage too many students to go to college. Not all students need to go to college, and some students are better off spending four years in an internship program or an apprenticeship program. Also, many subjects taught in high schools will have no future application for students. For example, I still know how to take the derivative of x-squared (it's 2x), but I have no idea what that signifies, and I've never used it in my law practice. Yet, I was able to sit through calculus because I knew it made me a more competitive college applicant. Despite calculus's uselessness to me, I had an incentive linked to a long term goal--a college and graduate degree--which made the class and high school tolerable.
I empathize with students who have no interest in math, second languages, science, or any other required core classes. These students have good cause to be disenchanted with school--they know they will most likely never use physics or even algebra. Their disenchantment or disinterest in their classes may actually be a sign of high intelligence. After all, which is a smarter choice: refusing to spend time on a subject that has no utility, or dedicating hours to it?
In addition, if the under-performing students' family lacks the money to send them to college, the students intuitively realize the system isn't designed with them in mind. Common sense tells them--and should tell us--that their first order of business should be getting useful skills that will lead to a non-minimum wage job. To accomplish that end, high schools ought to join forces with local businesses to teach students the skills they need to get a job immediately upon graduation. When a law degree--which takes four years of high school, four years of college, and three years of law school, plus an exam--doesn't lead to stable employment or useful skills, families should realize their property taxes and other taxes are being spent unwisely. There must be a better way to educate students than a system that encourages eight to eleven years of school and the prospect of paying off student loans by the age of 40.
Sunday, December 7, 2008
American Lawyers
Attorney Raoul Felder recently talked about job prospects for lawyers in the WSJ, only partly tongue-in-cheek:
Meanwhile, Congress might consider a bailout plan for lawyers. There are now some 1,162,124 lawyers in the U.S., and the law schools are spewing out graduates at a rate of 43,518 a year, all set adrift upon a public that increasingly wants doesn't have money to pay for their services. There is no other profession more dependent on discretionary spending, except perhaps the oldest one.
Oh, the reality.
Meanwhile, Congress might consider a bailout plan for lawyers. There are now some 1,162,124 lawyers in the U.S., and the law schools are spewing out graduates at a rate of 43,518 a year, all set adrift upon a public that increasingly wants doesn't have money to pay for their services. There is no other profession more dependent on discretionary spending, except perhaps the oldest one.
Oh, the reality.
Tuesday, November 25, 2008
Self-Represented Litigants
More people are representing themselves in court:
http://news.yahoo.com/s/ap/20081124/ap_on_re_us/representing_yourself
This is wonderful news. This will force the court system to be more open to the general population and will cause state legislatures to avoid emphasizing procedure over substance. We already see that happening in family court, where the system has been made consumer-friendly. Tellingly, the California State Bar approved "unbundled services" for family law services first.
The law is the only place where the authorities used to demand that clients get full service or nothing at all. That's like forcing someone who just wants a haircut to get a manicure and pedicure at the same place or get no service whatsoever. That kind of system has never made any sense to me.
In addition, self-represented clients can get flat fees for unbundled work, such as responding to motions or making a specific court appearance, which places the consumer in control rather than the attorney. From the financial perspective of the consumer, unbundled services are excellent because they create more competition, which leads to lower prices, and they allow the consumer to control exactly what s/he pays for specific services.
"Full service" was fine when civil lawyers charged more reasonable fees, and when it was easier to get to trial. Now, it sometimes takes more than a year to get a civil court trial, by which time 6 to 50 very expensive motions have been filed. If the State Bar forces attorneys to offer only full service, the business-savvy lawyers--by that I mean the ones that want to stay in business--will demand deposits of $5,000 to $10,000 before taking on any case. High deposits reduce court access to the poor and middle-class.
Unfortunately, the days of the "country lawyer" are long gone. I try to be a country lawyer, but it is becoming more and more difficult because I end up becoming more of a counselor and therapist than an attorney. When clients know their lawyer won't charge them for emails and phone calls or will cut fees, it creates an incentive to contact the lawyer more than necessary, and to use the lawyer as a therapist. This, in turn, can make an attorney who cares about his/her clients more emotionally involved in the case, causing the attorney to absorb the clients' negative emotions (after all, few people contact a lawyer because something good has happened).
In any case, the "full service only" system requires, practically speaking, a large deposit up front and places the control of that money solely and immediately in the hands of the lawyer. An unethical attorney can easily deplete the initial deposit and dump the client if the client chooses not to provide more funds. Thus, a "full service only" system--by creating an incentive for larger initial deposits--rewards lawyers who see their clients as short-term business propositions, because the less you care about your fellow human being, the easier it is to dump them if they fail to pay your bills or run out of money. In contrast, with unbundled services, the client has more leverage to demand a flat fee and the lawyer has an incentive to do good work so the client comes back.
The best definition of morality I've seen was from Immanuel Kant: "Always recognize that human individuals are ends, and do not use them as means to your end." A "full service only" legal system favors attorneys who treat their clients as "means to an end" by reducing the power and choice the consumer/client has in legal transactions. As such, an argument may be made that "full service only" is an intrinsically unethical system.
http://news.yahoo.com/s/ap/20081124/ap_on_re_us/representing_yourself
This is wonderful news. This will force the court system to be more open to the general population and will cause state legislatures to avoid emphasizing procedure over substance. We already see that happening in family court, where the system has been made consumer-friendly. Tellingly, the California State Bar approved "unbundled services" for family law services first.
The law is the only place where the authorities used to demand that clients get full service or nothing at all. That's like forcing someone who just wants a haircut to get a manicure and pedicure at the same place or get no service whatsoever. That kind of system has never made any sense to me.
In addition, self-represented clients can get flat fees for unbundled work, such as responding to motions or making a specific court appearance, which places the consumer in control rather than the attorney. From the financial perspective of the consumer, unbundled services are excellent because they create more competition, which leads to lower prices, and they allow the consumer to control exactly what s/he pays for specific services.
"Full service" was fine when civil lawyers charged more reasonable fees, and when it was easier to get to trial. Now, it sometimes takes more than a year to get a civil court trial, by which time 6 to 50 very expensive motions have been filed. If the State Bar forces attorneys to offer only full service, the business-savvy lawyers--by that I mean the ones that want to stay in business--will demand deposits of $5,000 to $10,000 before taking on any case. High deposits reduce court access to the poor and middle-class.
Unfortunately, the days of the "country lawyer" are long gone. I try to be a country lawyer, but it is becoming more and more difficult because I end up becoming more of a counselor and therapist than an attorney. When clients know their lawyer won't charge them for emails and phone calls or will cut fees, it creates an incentive to contact the lawyer more than necessary, and to use the lawyer as a therapist. This, in turn, can make an attorney who cares about his/her clients more emotionally involved in the case, causing the attorney to absorb the clients' negative emotions (after all, few people contact a lawyer because something good has happened).
In any case, the "full service only" system requires, practically speaking, a large deposit up front and places the control of that money solely and immediately in the hands of the lawyer. An unethical attorney can easily deplete the initial deposit and dump the client if the client chooses not to provide more funds. Thus, a "full service only" system--by creating an incentive for larger initial deposits--rewards lawyers who see their clients as short-term business propositions, because the less you care about your fellow human being, the easier it is to dump them if they fail to pay your bills or run out of money. In contrast, with unbundled services, the client has more leverage to demand a flat fee and the lawyer has an incentive to do good work so the client comes back.
The best definition of morality I've seen was from Immanuel Kant: "Always recognize that human individuals are ends, and do not use them as means to your end." A "full service only" legal system favors attorneys who treat their clients as "means to an end" by reducing the power and choice the consumer/client has in legal transactions. As such, an argument may be made that "full service only" is an intrinsically unethical system.
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