Notes from a Legal Seminar

Some notes from a recent legal seminar:

Judge: "[Court] Trials are civilized combat."

An example of an opening statement to a jury: you've got the facts, the law, and your common sense.

Judge Conrad Rushing on CMCs:

1) Make every appearance count; and

2) Don't continue it out. [i.e., avoid continuances.]

California has a 95% settlement rate, i.e., 95% of cases in the state do not go to trial.

In mediation, if there is an impasse, ask the side that is refusing to budge the following questions:

1. What do you think the case is worth?

2. If they offered that much, how much would you counter with?

For Aspiring Lawyers and Law Students

The blog, Not a Potted Plant, recently had an interesting post about law school:

http://notapottedplant.blogspot.com/2010/06/law-students-there-is-no-pot-of-gold.html

If you are in law school right now, in California, chances are pretty good that by the time you get your J.D. you're going to have spent $100,000 on your legal education. And if you're like I was, you've borrowed that money. In some parts of the country, that's what it costs to buy a house. Only you can't default on student loans; you can't even bankrupt out of them.

The sad reality of it is, the majority of you law students aren't going to be getting $100K+ jobs.

If you're going to law school because you want to make lots and lots of money, you can do it, but there are better avenues if money is your primary goal.

Nepotism, Racism, and Fairness

As a California employment lawyer, I've represented people of all races--Caucasians, Africans, African-Americans, Asians, Southeast Asians, etc. After eight years of litigation, I am realizing that most employment issues revolve around a lack of communication. Usually, problems begin when the boss doesn't explain tasks properly or clearly; the employee fails to adapt to a personnel change or new methods; or the employer fails to correctly identify or reward the hardest working employees.

Overall, some of the most difficult cases I've seen involve promotions, especially government promotions. One "hot" current legal battleground is challenging the methods used to test into a particular job, such as a police officer or firefighter.

In San Jose, CA, the police department promotes officers based on several factors, including diversity. After a series of interviews and questions, the SJPD will draft a list of the top applicants and then choose from any of the top ten finalists, regardless of their actual placement. In other words, placing first does not necessarily give someone an advantage over the tenth place applicant. In practice, this "Rule of 10" allows the SJPD to promote based on various subjective factors, including friendships, peer reviews, personal relationships, diversity, etc. Other Bay Area police departments do not utilize the "Rule of 10" but still have diverse police forces; even so, most people would agree that the "Rule of 10" has increased racial diversity with the SJPD. Two questions come to mind: 1) "What about the people getting passed over on the promotion list when the SJPD reaches down and selects a lower-ranked applicant based on subjective factors?" and 2) How do we ensure that taxpayers receive the best employees based on merit, not nepotism?

Prior to answering the above questions, we should consider three interesting background issues. First, some people believe that diversity in hiring and promoting is important because local residents pay taxes and therefore deserve at least some commensurate ethnic representation in local agencies. Having an all-white police force in Oakland, CA or an all-black police force in Newport Beach, CA may appear problematic for various reasons and may weaken the credibility of the agency.

Second, most recent court cases involving promotions and testing deal with public safety officers. This development is not surprising. The cost of a police officer or firefighter has increased exponentially over the past decade due to positive sentiment post-9/11, as well as aggressive unionization. Today, a police officer hired in San Jose has won a lottery ticket. Over the course of his or her career, s/he stands to make millions of dollars in salary and benefits, including unique benefits such as job security, lifetime medical care for the entire family, and a pension of up to 90% pay. It is no wonder that public safety positions are much sought after. However, the more expensive a position, the fewer positions taxpayers can afford, which increases competition.

Hence, the third issue is basic economics: the more expensive you make something, whether it's emeralds, gold, or cops, the more likely it will be scarce. (This is a variation of the usual economics rule that there is an inverse relationship between price and supply.) Thus, as public safety positions become more expensive and more demanding, the number of available positions decreases, which increases competition. (As prices goes up, supply goes down, which increases demand and therefore competition.) Consequently, agencies must formulate tests to weed out some applicants, even deserving ones. Furthermore, although residents often want more officers, they may not be able to afford them in a time when training and hiring an officer has become a multi-million-dollar proposition. In some cities, such as Campbell, California, over half of the entire budget goes to the police and fire departments, much of it to retirees who no longer provide any services to local residents. [See here for more (page 8).] The lesson: price and scarcity are related, and the more expensive you make something, the less of it you can have.

Where does that leave us with respect to answering our two original questions? Stating one of them another way, "How does an agency create a fair test that doesn't slight a deserving person who is passed over?" I originally thought the test should be completely objective, like a multiple choice quiz. But then I realized that many government employees, especially officers, have to deal with the public, which requires social skills and anger management skills, which are difficult to measure in a purely objective test.

Yet, the minute we accept that hiring will be based on some subjective factors, how do we agree on the particular subjective factors to be used? After all, once we get to the top ten applicants in any widely-publicized position, most or all of them are probably capable of doing the job. How, then, do we determine which intangibles to use when it comes to selecting someone who has made the cut? Too often, I see nepotism being used in close calls. Someone golfs with someone else, or knows a mutual friend, etc. None of the aforementioned factors has anything to do with merit, such as an advanced degree, grades, or hours of training. At the same time, no law prevents nepotism, which forces spurned applicants to allege racism or some other element related to a protected class to get legal relief. Consequently, what should be a discussion about formulating a fair test becomes a supercharged discussion about race.

Even so, once we accept that subjective factors such as a person's demeanor, peer reviews, nepotism, or personal connections may be legally used to hire or promote someone, we open the door to other subjective factors, like diversity or race or gender. There's no way around it--one person's subjective factor is another person's public policy goal or another person's unfair reason. Realizing that we cannot use a purely objective test, how do we prevent a person being passed over from thinking that his race or gender caused him to lose the promotion or the job? How do we ensure that everyone is treated as an individual, regardless of his or her race or gender?

Fairness is the problem cities and counties face when hiring and promoting government employees, especially public safety officers. If taxpayers demand the best person for the job, what is the most fair way of making such an evaluation? What subjective factors may someone use during the testing process? Courts are ill-equipped to handle these questions, but applicants must continue to rely on allegations of racism or reverse racism to gain access to an impartial judge, and judges continue to rely on disparate impact numbers to overturn or approve testing procedures. Yet, the most important question of all--how do we make the most fair test?--continues to go unanswered, perhaps because the general public and our elected officials don't know enough about particular government jobs to demand that only certain factors be used. That means that government jobs have become the new cultural and racial playground, which is unfortunate for the applicants as well as taxpayers, who deserve better.

One solution is to make the entire promotion and hiring process transparent and public. We demand Supreme Court nominees go through a qualification process in public, but we allow local officials to hire employees behind closed doors. Yet, it is far more likely that a local police officer, firefighter, county counsel, etc. will have more of a direct impact on your life than a Supreme Court justice. The government hiring system currently lacks accountability because most employees are hired without any public scrutiny or public access to data.

On a lark, I once applied for a Social Security contact/service rep position. This job paid about $34,881 a year and required answering phone calls from people with questions about their statements, etc. The federal government told me that I was unqualified for this position--despite the fact that I've graduated law school and run my own law firm for several years, where I handled all phone calls personally.  I've applied for other government positions, and sometimes, I will get an email indicating I've made the initial cut. Unfortunately, that's all I usually get. Then, I won't receive anything else, not even a rejection letter or email. In one case, I actually received an interview, which required a written test beforehand. I ended up answering the test in a way that was correct but that exceeded the examiner's expected scope on one question. During the interview, my detailed answer appeared to embarrass the examiner in front of his peers, who realized the examiner had not considered other possibilities. The interviewer decided to use the interview to verbally joust with me. Predictably, I made the initial cut, but did not get the position. In another case, I applied for a job and never received anything indicating they had received my application. By the time I finally received a rejection notice, I learned that the agency had chosen its top candidates months ago.

The public and aspiring government employees deserve better. To make the system more fair, we should demand the government's testing and hiring process be open and exposed to public scrutiny. Otherwise, without some check on its power and discretion, the government will continue to mishandle taxpayer monies and weaken morale in existing and aspiring government employees. Over time, if our current nepotism-based hiring and promotion process continues, the government will lose credibility, and citizens may eventually lose faith in their country's representatives.

Comments from Santa Clara County Judges on Law and Motion

From last night's Santa Clara County Bar Association seminar:

On motions: "Brevity is beautiful."

On ex parte motions: "Your procrastination is not our emergency."

On disputes between lawyers: The basic concept is, "Don't involve the court." [i.e., do your best to work things out]

On how to begin your motion: the first paragraph should tell the court why you are here and what you want the court to do.

The Average Lawyer's Creed?

Isaiah 59:4 "No one calls for justice; no one pleads his case with integrity. They rely on empty arguments and speak lies; they conceive trouble and give birth to evil."

Update: a friend says that the above quote should apply to politicians, not lawyers.

Finally, a Good Lawyer Joke

From the awesome show, Community, comparing being a doctor to being a lawyer:

Well, anybody could be a lawyer. You can even represent yourself. You can't do surgery on yourself. It's illegal. You'd get arrested. And then you'd get a free lawyer.

A great show, but Hulu only has two episodes posted. Bonus: Chevy Chase is fantastic on the show.

Law: Juries, Verdict Forms, and Keyser Soze

Rule #1 as a plaintiff. Strike all the engineers from the jury pool.

Jurors should remember: you don't have all the information in a trial, and you don't know how the legal process works. Just because a lawyer doesn't spend time trashing the other side, it doesn't mean the other side is angelic. Sometimes, we cannot introduce evidence about how bad the other side is, even if he's bashing our side. Sometimes, judges rule that one side can say certain things, and we can't respond in kind. That means if we mention certain things, the judge can declare a mistrial, and we have to do the whole trial over again.

Don't make any assumptions. Just look at the evidence. Don't assume that you're smarter than everyone else, and you're able to see something that isn't actually in front of you in the form of testimony or a document.

Also, if you do rule against a plaintiff, it usually means s/he has to pay the other side's costs. Sometimes, if you're not sure about who's right, the best thing to do is to rule for the plaintiff and give him or her one dollar.

For lawyers: don't assume that a plaintiff will always benefit from a general verdict form instead of a special verdict form. (A special verdict form forces the jury to think hard about each element of the case, while a general verdict form basically asks, "Is he liable for fraud? yes/no.") By giving the jury a simplified general verdict form instead of a special verdict form, jurors were able to avoid thinking hard about the case.

Also, a simplified form allows the foreperson to advance her/his own ideas about the law, even if s/he is completely wrong. Here, we thought the case was already complicated enough, so all of us agreed on a general verdict form to make things easier on the jury. Unfortunately, the general verdict form allowed the jury to bypass thinking analytically about the case and to decide based on their general feelings and the foreperson's own ideas about the law. For example, after the trial, one juror (the foreperson) said, "The other side's conduct wasn't flagrant enough." I was thinking, "Dude, that's not the law. There's no law that says, 'Only flagrant conduct is illegal,' or "The conduct must be flagrant to be illegal.'"

More advice for lawyers: don't always take the high road. If the other side is bashing your client and name-calling, try to find some way of countering without causing a mistrial. Jurors will choose sides based on whom they think is the good guy or the bad guy, regardless of the law. For example, if the other side hasn't bifurcated punitive damages, bring up the value of his home or another large asset if he keeps saying he's judgment-proof. Or bring up his unpaid debts. Or his or her massive wealth. You need something to make the jurors think they're dealing with someone who can handle a judgment or who deserves a judgment.

On the other hand, consider dropping punitive damages if you don't have a slam dunk situation. You won't be able to bring in any evidence of the defendant's net worth or financial information, but the punitive damages portion will probably get bifurcated anyway (thereby preventing you from talking about the other side's financial situation, bad debts, massive wealth, etc.). The upside is that you won't have to prove malice or oppression. If you try to show malice or oppression, jurors may get confused about the burden of proof on the original claim. For example, they may think that negligence requires malice (it doesn't). Lawyers may want to tell a jury in closing argument whether a specific claim requires specific intent.

I am going to need some time to get over this one. I will not be posting for a while.

P.S. Note to judges: if you allow the other side to bring up stuff about atomic bombs or to equate a foreign government's actions with an individual, no matter what the result, one party will think the process was tainted. Telling someone the remedy for any resulting prejudice is a mistrial--where a party and his lawyer have to come back and do everything all over again--is fair but somewhat impractical when one side is pro se and essentially unemployed, and the other side is paying for a lawyer and expert witnesses. I don't want to focus too much on the national origin issue now, but I might write about it later. At the end of the day, I feel the jury treated my client, an educated U.S. citizen of Middle Eastern descent, as not fully American. Why would they do that? Why would they side with the lawyer who had misrepresented facts all week? Could all the talk about atomic bombs and religion have something to do with it? Was it something else? Was it a combination of different factors, some permissible and some impermissible?

(And yes, I did ask the court to exclude testimony and comments about foreign governments and international affairs. The court wasn't sympathetic to my argument that mentioning the Iranian government and current events would result in prejudice. I argued that allowing such comments and testimony would be unduly prejudicial when the media is currently hyping an Iranian nuclear threat and when the primary images of Iranians in the mainstream media are of the much-hated Iranian president. The court wasn't swayed by my argument. The court did exclude evidence of my client's international travels, but the defendant still mentioned it during the trial. The judge stopped the trial, called us over for a sidebar, and warned the defendant that he was in contempt and should not mention excluded evidence again. The defendant went back to calling my client a "professional plaintiff," which was somewhat hilarious to hear from a plaintiff's lawyer. Also, I don't know if this should make me feel better or worse, but I believe the judge was sincerely fair. I still believe we were very lucky to get an excellent judge.)

Update: I forgot to add one more interesting tidbit. After the trial, a judge can ask the jurors how they voted if requested by a party. This is calling "polling" the jurors. According to the one juror who voted in our favor, someone switched her vote during polling. So one juror decided one thing in the jury room and another thing in public. Why would someone switch her vote?

Keep in mind, other than the defendant's/lawyer's own testimony, no other evidence was offered to prove my client had a bad motive for bringing his current lawsuit. The defendant even said at one point, "You're slicing baloney," when I asked him about the alleged conversations between himself and my client. Two other lawyers who were in the room and heard defendant's allegations found them to be totally baseless and indicated the defendant was not believable. Under cross-examination, the defendant testified that he and my client had a 2 to 3 hours conversation about my client's ex-wife, my client's search for an Iranian wife, and Middle Eastern politics. Later, the defendant suddenly added that my client had discussed the Holocaust during this conversation. I asked about the percentage of the conversation dedicated to personal issues, Middle Eastern politics, and the Holocaust. He answered, "50/50." I asked him how three different topics could be "50/50," which spurred his "slicing baloney" comment. During this part of his testimony, the defendant mentioned Iran's conference against the Holocaust and said the Holocaust is called the "Hollow Holocaust" in Iran. No one in the jury appeared fazed at all, perhaps because by that point, they were tired and had been desensitized by the earlier comments about nuclear bombs and government actions. My client is a clean-shaven U.S. citizen who has been living in America since 1978.

Furthermore, the defendant once accused a sitting judge of being anti-Semitic, a claim that was rejected. Defendant's allegation of judicial anti-Semitism occurred in a separate case, and I didn't want to risk a mistrial/contempt by mentioning it after the judge ruled that we could not discuss unrelated cases.

The one juror who voted in our favor on the legal malpractice claim? A retired ex-Air-Force sergeant. Post-trial, when the jurors learned more information about the defendant, they appeared shocked. The retired ex-Air-Force sergeant even angrily exclaimed, "I told you so," to one of the other jurors.

A Gentleman and a Scholar

I have not laughed so hard in so long. HERE's an article on dating an attorney. My favorite tip:

Don’t be surprised when your lawyer sweetheart nitpicks everything. When it happens, don’t accuse him of splitting hairs. That would be like accusing a dolphin of swimming. Instead, thank him for being both a gentleman and a scholar.

Hilarious, isn't it? And so true.

Lawyers and Depression/Pessimism

From Daniel Lukasik:

Pessimism is seen as a plus among lawyers, because seeing troubles as pervasive and permanent is a component of what the law profession deems prudence. They have to foresee every possible snare and catastrophe. While this might help them be better lawyers, this trait does not always make them happy human beings.

More here. Hat tip to Alison B.

Should You Go to Law School?

HERE is Felix Salmon's (depressing) outlook for law school grads. Ouch.

For the record, I am pleased with my alma mater, Santa Clara Law School.

Reason #15,473 Not to Go into Law: You Might Become a Real Prostitute

Reason number 15,473 not to go to law school: if you don't pass the bar, you might end up becoming a high-priced escort. See here for the story of a Stanford Law graduate who ran a high-priced call girl service.

If the link doesn't work, try googling "Cristina Warthen," "Brazil," and "Stanford Law." From the SJ Merc article:

Warthen gained notoriety when she was busted as a jet-setting call girl who sold her services to pay off her Stanford Law School debts. She got her law degree from Stanford in May 2001.

I wonder if she ever met Eliot Spitzer...

Liberal Judges vs. Conservative Judges

I was thinking this morning about courts and politics. I've discovered I tend to get along very well with former military servicemembers and police officers. One of my best friends is a JAG (from ultra-conservative Orange County, no less). Another lawyer I respect is also a JAG. While I don't know many police officers, I've found most of them to be hard workers.

As an anti-war libertarian, I find it strange that I can easily socialize with people on opposite ends of the philosophical spectrum. (At least now I understand Ron Paul's comment that individual military servicemembers, as a group, contributed more to his presidential campaign than to any other candidate's.) I did some thinking, and I realized I get along with liberals because I favor change and diversity, and I get along with conservatives because I see the limits of the law in creating any real change. In other words, I am hopeful enough to get along with the liberals, but cynical enough to see the inefficacy of most liberal programs.

As attorneys, there comes a period of time when we get enough experience to see the system as it is, not as we want it to be. Think of the famous Gandhi quote--"Be the change you want to see in the world"--but minus the idealism. After we clean the pixie dust from our eyes, young lawyers look at our student loans and get back to work. (The potential for starvation helps clear the mind rather quickly.) We realize, sadly, that the law doesn't matter so much as the audience, and the only audience that much of the time is the judge, who gets selected randomly. Is it strange to think that the law relies so much on randomness? I assure you, at some point, you get over it, or you go insane. As fans of Trainspotting will appreciate, I choose sanity.

I have also noticed that conservatives tend to work harder. For example, I've noticed that judges who were former military servicemembers work the hardest. Even politicians who used to be military, like Chuck Reed, are known for working hard. Servicemen don't seem to lose their work ethic, and they bring it with them to every job, whether it's politics or the bench. Thus, while many government jobs are filled with "lifers" resistant to change and who do the absolute minimum required, the military is probably the one branch of government that demands you work hard, no exceptions allowed. As a result, when servicemembers finish their military commitment, they bring the same "hardcore" attitude to their civilian careers. In my experience, judges who are ex-military usually read the court filings and are well-prepared for court hearings, even if they don't reach a fair result or go overboard. Many other judges are quite content to show up and let their law clerks do most or all of the work, but that lax attitude doesn't seem to afflict most ex-military members.

Police officers tend to function like military servicemembers. They're also hardcore, and they respect hard work. (By the way, the police officers I've met usually hate Democrats, because they think Democrats are naive in thinking their policies or laws would have any effect on a child molester or a drug dealer trying to make a buck.)

So why do I tend to get along with cops and military servicemembers, even though I am anti-war and I favor more police oversight? I guess it's because I'm hardcore, too. I'm fond of saying, "I do what I say, I say what I mean." As I get older (cue Winston Churchill and his comment about young hearts and old brains), I've noticed that many self-proclaimed liberals tend to be big thinkers and big talkers but lack the capacity for actual sacrifice. For example, I recently saw a liberal activist with a T-shirt that said, "Anti-War." Well, that's great, but how does buying yourself a T-shirt help some little kid in Iraq? Personally, I would take that T-shirt money and donate it to kiva.org, the Red Cross, or some other organization. That's the problem I've seen with many liberals--they have strong views, but they refuse to sacrifice anything themselves. It's usually someone else who has to do the sacrificing--either the rich, the small business owner, etc.

As for liberal judges, I've found many of them tend to have a poor work ethic. While the conservative judges are at home reading the papers for court the next day, the liberal judges tend to be teaching law classes, giving seminars, publishing some legal treatise--i.e., something that allows them to impart their knowledge to the public.

Don't get me wrong--I love legal seminars, especially the ones that include judges. But other than one judge, who's in federal court, I don't tend to see liberal-minded judges prepared with insightful questions to ask. One time, I provided a liberal-minded judge with extensive legislative history relating to a law. I marked in bold and 14 point font all the relevant sections of the history that showed the judge that his law clerk's statutory interpretation was wrong. The judge practically freaked out (I could almost hear him thinking, "You don't expect me to read all this, do you?"), and--in my subjective opinion--may or may not have ignored the legislature's intent.

Maybe I'm a terrible oral advocate, but I've left court several times feeling like my hard work and research were a waste of my time and my client's time. Too often, there are no tentative rulings to focus the oral argument, or the judge does not ask me a single question. As a result, I've become critical of judges who rely solely on their law clerks, even when their clerks do excellent work. As far as I'm concerned, judges who don't personally read the legal briefs are stealing from taxpayers. It seems no different than a lawyer who bills for time never worked. A lawyer who tried to bill for unworked hours would be fired, so why should a judge be treated any differently? After all, judges are paid for their time and expertise, just like lawyers. Shouldn't they read the legal briefs, even if they have research attorneys?

Before addressing some differences between conservative and liberal judges, it's important to note that I am generalizing--there are liberal judges who are hard-working, and conservative judges who appreciate nuance. At the same time, I have noticed some distinct patterns among liberal judges and conservative judges. In my experience, conservative judges tend to read the papers; either ask relevant questions or none at all (think Clarence Thomas); tend to work hard; tend to avoid legal seminars and other outside legal activities; and have a well-run, efficient courtroom (i.e., if someone starts repeating arguments already stated in the papers, they get cut off).

The downside to conservative judges is when they're good, they're great, but when they're bad, they're the Devil's spawn. Really horrible conservative judges, for example, think they're the only thing standing between anarchy and civilized society. As a result, if the bad conservative judge hates your case, you and your clients will get sanctioned or will suffer somehow. Another characteristic of terrible conservative judges is that if you don't suck up to them, you will pay for it. The legal system has many technicalities, and a bad conservative judge can make your trial or legal motion Kafkaesque if he feels like you're not giving him appropriate respect; in the alternative, he may just dismiss your case, knowing that your client probably doesn't have the resources to appeal.

In contrast, liberal judges tend not to sanction parties, even when they richly deserve it. Say what you want about "sympathetic" judges, but when it comes to avoiding embarrassing scenarios, I'm putting my money on the liberal judge. At the same time, generally speaking, liberal judges tend to believe their compassion and wisdom absolves them from reading every paper that is filed. Perhaps that is a reasonable perspective. After all, most law/research clerks are quite good, and they summarize the legal papers very well. The downside to relying on law clerks is that it takes a long time for a new lawyer to get any respect from some liberal judges. If a new lawyer is good, but the judge never reads his papers, the new lawyer will never get any respect.

When I first started out, I could tell who read my legal briefs by the level of respect I got from the bench. Typically, due to my youthful appearance, if a judge hadn't read my legal briefs, he would act like he was doing me a favor when I won. In contrast, the judges who had read the papers knew I wrote well, and they would treat me no differently than anyone else. Over time, I realized that most of the judges who read my papers happened to be more conservative. I really enjoyed not being treated differently just because I didn't have 40 years of experience. After all, if your papers are well-written, and you cited the proper case law, why should the number of years you've had a bar card matter?

Again, I realize this post relies on generalizations, but I hope you've enjoyed it. One last comment: if you get the chance, vote for female judges. There aren't enough of them in court, and, just like in real life, the more women around, the less likely it is that the men do crazy things. According to the Federal Judicial Center's History Office, only 25% of Article III judges are female, and only 1% identify themselves as Asian Americans. (Source: Shawna Wilson, Oct 2009, Young Lawyer.) I don't know the exact state court statistics, but a similar gender imbalance probably exists in California state courts.

P.S. I just realized a shorthand way to summarize my entire post. Have you seen the early episodes of the TV series, Scrubs? If so, think of Bob Kelso as the average liberal judge--the one who doesn't practice medicine and lets other people do much of the work--and think of Dr. Cox as the average conservative judge--the one who looks like the a**hole, but who's really the main person holding up the place. I'd probably play Dr. Dorian, who, "despite his numerous flaws, quirks, and personal insecurities," is shown to be a very competent doctor. Well, at least that's what Wikipedia says.

P.P.S. Make sure you read Ken's comment. Overall, he may be right that there are only two categories of judges: judges who require strict, slavish compliance with evidentiary rules, and judges who don't. But Ken's comment also tells you that judges have wide discretion in interpreting the evidence rules, which should tell you that the rules are too convoluted. The more convoluted the law, the more the legislature is allowing judges to potentially decide outcomes based on individual preferences.

Let me give you two examples of a judge administering evidence rules differently. In one trial, opposing counsel had numerous emails that hadn't been verified, i.e., no custodian of records appeared, no declaration, just a bunch of emails sent by some employees. No one was disputing that the employees had sent the emails. Opposing counsel waited the end of his examination before asking the court to admit the twenty or so emails into evidence. The judge, knowing my objections would require tedious parsing of the emails, glared at me, almost daring me to tick him off by making an objection. This was a bench trial (no jury), so I didn't object to the emails. The judge admitted the emails into evidence. The judge glaring at me won't show up anywhere in the record or transcript.

In another case, I had numerous emails to introduce. All emails were given to me by the corporate defendant. All the people who had sent the emails used corporate email accounts. No one was disputing that the plaintiff had sent these emails. A company employee admitted on the stand that no one had hacked into the server, and there was no reason to believe the emails had been altered or forged in any way. Opposing counsel came from a large law firm and objected several times to the emails. The judge refused to admit the emails into evidence.

What's the difference between scenario A and scenario B? I don't know what to tell you. One was a jury trial, and the other one was non-jury, but that should not have made any difference. By the way, the same judge presided over both trials.

[Update: about a year after the trial in which the judge refused to admit numerous emails into evidence, I had another jury trial with a different judge. This trial also involved several important emails. I was able to get the emails admitted into evidence.]

(A federal judge, the Hon. Judge James Rosenbaum, has tried to come up with a solution, FRE 808; however, other than one law review article, I don't see much else on this new proposed rule of evidence.)

If You're Thinking about Going into Law...

This ABA article should be required reading for all you aspiring law students.

Broken down by age group, the median salary of law grads who never passed the bar was $32,000 before they reached the age of 30 (compared to $48,000 for lawyers and $35,600 for college grads), $48,000 from the ages of 30 to 39 (compared to $64,000 for lawyers and $42,000 for college grads), $54,000 between the ages of 40 and 49 (compared to $83,600 for lawyers and $46,250 for college grads), and $62,849 between the ages of 50 and 59 (compared to $86,400 for lawyers and $48,416 for college grads).

Did you see the median salary for most law grads under 30 years old? Yes, your eyes are clear--it's $48,000/yr. The lesson: don't go into law just because you think the money is wonderful.

For your information, 2009 annual tuition at my alma mater’s full time law program is $38,040, or $114,120 total. At a local night law school, total tuition for a law degree is $51,156. The aforementioned tuition numbers do not include books, study aids, or bar prep courses, which can add an additional $10,000 to $15,000 to the cost of the J.D.

Why is there such a wide disparity in tuition costs between my law school and the night school? My school's alumni network is much different. I know some graduates from the night law school, and all of them are solo practitioners. Nothing wrong with being a solo (I'm one), but I don't know of any big or even small firms where this night school's grads have hiring authority. In contrast, both of my jobs out of law school were given to me by former alumni.

I am happy I managed to pay off my student loans. I had a generous housing situation, but I still had to minimize unavoidable expenses, like food, gas, suits, a reliable car, insurance, etc. I remember eating mostly peanut butter and jelly sandwiches for three years post-graduation. A few times, I forgot to pack my lunch, and I just didn't eat that day. Also, although I love coffee, I avoided Starbucks like the plague. An attorney/mentor (a fellow alumnus, by the way), would buy me lunch once a month, and I looked forward to those lunches more than he will ever know. Now, we take turns paying for lunch, which is nice.

Before I forget, I will leave you with one story about my friend/mentor. When I first met him, I had no idea he was a big shot lawyer. I got to know him because he and I both love movies, he is down-to-earth, and he seemed like a really cool guy. One time, he casually mentioned that he had taken a weekend vacation with his family, and somehow, the cost came up. It was 8,000 dollars. My eyes got wide, my head jerked back, and I remember saying, "8 thousand dollars? For one weekend? How is that possible?" The only thing going through my mind was, "That's two full years of undergrad tuition at UC Davis!" I hope my friend/mentor doesn't remember that day. He hasn't said anything about it, but since then, he's never mentioned the price of any of his vacations.

Should State Bars Shield Judges from Criticism?

If you're a lawyer, should your free speech rights be curtailed? Before you criticize judges, see here for NYT article (John Schwartz, 9/12/09). The Florida State Bar reprimanded Sean Conway, an attorney, for his blog posts about local judges.

Personally, I am very conflicted. On the one hand, we should respect judicial independence, and we already allow judges to issue gag orders to prevent jury prejudice. But other than judges and lawyers--who are most familiar with the legal system--who else is able to provide reliable information on our court system?

In the final analysis, judges are government employees, not kings and queens. They are 1/3 of our representative government. It makes little sense to shield them from criticism, assuming such criticism does not negatively prejudice the parties in the case. In short, judicial criticism should turn on how the criticism affects the parties, not lawyers or judges.

David Feige, from New York, posted an interesting comment:

Judicial accountability is critical. Awful criminal court judges too often fly below the radar, eviscerating critical constitutional protections, and harming the mostly poor and disenfranchised who appear before them. It is here, more than almost anywhere that free open debate, and even freewheeling and critical commentary should be encouraged, not chilled.

Real judges have the temperament to roll with the punches, and admire and encourage argument in order to bring the truth to the fore. The fact that a judge seeks to squelch discussion, and intimidate opponents says everything one needs to know about their fitness to judge.

Amen, David.

My Experience as a Lawyer

From what I see, people either distrust corporations or the government. If you tell me which you distrust more, I can probably tell you whether you're a Republican or Democrat.

But if we set aside politics, the first problem with laws is that small businesses--an essential part of our economy--get entangled in regulations that should be designed only for major corporations.

The second problem is that these small businesses--many of them immigrant-owned--don't have litigation budgets or cannot afford to pay a lawyer in advance to comply with every technical law. It just seems unfair that Mr. Cambodian Donut Shop Owner has to learn about some technical violation only when he gets served with a lawsuit and has to go lawyer-hunting.

The third problem is that government doesn't do enough to help these small businesses, even as it taxes them heavily and relies on revenue from them.

The fourth problem--and why change is so difficult--is that major corporations essentially control much of the legislation (when they're not writing it) and heavily influence Congress.

Overall, there are many laws we ought to have, but not if they also apply to small businesses. It's a shame we don't impose minimum revenue requirements on small businesses before subjecting them to thousands of pages of hard-to-understand laws.

Lawyers and the Recession

The NYT recently had a great article on the recession and lawyers (8/25/09, "Downturn Dims Prospects even at Top Schools"):

http://www.nytimes.com/2009/08/26/business/26lawyers.html

A Japanese-American Hero Dies

Judge Robert Takasugi recently died. Post-9-11, he was one of the few judges in the country that demanded our government follow the Constitution.

When weighed against a fundamental constitutional right which defines our very existence, the argument for national security should not serve as an excuse for obliterating the Constitution.

[from United States v. ROYARAHMANI (June 2, 2002, Central District of California)]

Perhaps Judge Takasugi's skepticism had something to do with being interned by the American government during WWII.

According to the NY Times obit (Bruce Weber, 8/8/09), Judge Takasugi "never forgot the experience of internment":

“I was a consequence of history...In 1942, as an 11-year-old child born in Tacoma, Washington, I became a prisoner of war imprisoned in an American-style concentration camp by the country of my birth. I vividly recall the military guard towers manned by armed soldiers surrounding the perimeter of the high-fenced walls which separated us from the free world. There were no formal charges, no right to face and confront the accusers, nor a right to a trial or hearing. Imprisonment was based on the accident of ancestry.

“From this unfortunate history, a lesson should have been learned that under our Constitution, a truly free government must dedicate its powers to and for the people, and that our representatives must adopt this commitment with integrity as a nondelegable duty and responsibility.”

Even though it took some time, Judge Takasugi is a living embodiment of America's promise: freedom to all, regardless of national origin and race. I am glad he lived long enough to see the American public catch up to him. I just wish he had the opportunity to write an opinion on Guantanamo Bay.

Bonus: Justice William Douglas from Laird v. Tatum (1972), emphasis added:

[S]ubmissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the [Soviet] Russian image."

FBI and Clarence Darrow

The FBI has published its report on famous lawyer Clarence Darrow. (Warning: PDF File) Here is the link to the full report. The report contains excerpts from an interview with Mr. Darrow. Below is my favorite part of the interview:

"The litigants and their lawyers are supposed to want justice, but, in reality, there is no such thing as justice, either in or out of court...In the last analysis, most jury trials are contests between the rich and poor."

Mr. Darrow was a smart man. Most of his statements focus on jury selection. In other words, Mr. Darrow (correctly) believed that jury selection matters more than the law itself.

Henry Louis Gates, Questions

The following questions aren't the usual "Let's get to know you better" kind. They are leading questions, and they force you to question your own principles.

1. What is the point of the 4th Amendment if the government can tell you how to behave in your own home even after it has verified that it is your home; you have not committed a crime; and you have a legal right to be there?

2. Prof. Gates was arrested on his own front porch. The officer who arrested him had already verified his ID and appears to have been walking outside. If Prof. Gates began yelling at the police officer and belligerently demanded the officer's badge number, whose job was it to walk away and de-escalate the situation? The Harvard professor in his own home, or the police officer whose salary is being paid by the Harvard professor?

3. As soon as the police officer verified Prof. Gates' ID and realized he was the proper homeowner, did Prof. Gates have the legal right to tell the police officer to leave his property? If yes, then as a legal principle, what does it matter the choice of words that Prof. Gates used to ask the officer to leave his home?

4. Is it a crime to be verbally belligerent to a police officer in your own home when the police officer has already verified that no crime is taking place in the home? Is there ever such a thing as "contempt of cop"?

Here is the best article I've read so far on the Gates-Crowley affair (Robin Wells, July 27, 2009):

http://www.huffingtonpost.com/robin-wells/hard-truths-and-the-teach_b_245856.html

I believe that the treatment of Professor Gates was unjust and unprofessional. Yes, he was belligerent to a police officer. But that is no crime, and nowhere has Officer Crowley shown that there was any chance of a crime being committed, confirmed by the Cambridge Police Department's quick decision to drop the charges against Professor Gates. Police officers are trained to be professionals, and a professional would have recognized that an obstreperous sexagenarian who walks with a cane standing in his own house and faced with a phalanx of armed police officers is no threat...

[But] The hard truth that Professor Gates needs to hear is that he is the one who handed over his power to Officer Crowley. Letting his agitation get the better of him, Gates lost the ability to shape the outcome of the encounter and set up his own victimization by a poorly trained police officer.

Amen, sister. Basically, the police officer was unprofessional and did not handle the situation properly, but Prof. Gates could have saved himself a lot of trouble by being the bigger man. Professor Gates might not have realized he had to show the officer his state-issued ID, not just his Harvard-issued ID.

By law, you must produce state-issued ID when requested to do so by a police officer who has lawfully detained you. Most states have statutes similar to the following: “Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer." I know these types of "ID" laws sound perilously close to "Show me your papers," but the law seems clear--see U.S. Supreme Court decision Hiibel v. Sixth Judicial District Court of Nevada (2004), decided by a 5 to 4 vote. (I wonder if Justice Kennedy is now reconsidering his deciding vote.) Perhaps if Prof. Gates had known the law requires him to produce state-issued ID to an officer, the situation might not have escalated.

In any case, when a police officer needs to call backup to handle a senior citizen Harvard professor, something's amiss. As President Obama stated, "I think...that you probably don't need to handcuff a guy, a middle-aged man who uses a cane, who is in his own home."

Although Prof. Gates could have de-escalated the situation, the burden was on the officer to do so, not Prof. Gates. The Cambridge Police Department owes Mr. Gates an apology for escalating what should have been a routine check.

Bonus: Here are 9th Circuit Judge Alex Kosinski's comments on free speech, which apply to Gates' case:

See Duran v. City of Douglas (1990): [T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." [Houston v. Hill, 482 U.S. 451 at 461] The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Re: criticism of judges, see Standing Committee of Discipline v. Yagman quoting Bridges v. California, 314 U.S. 252, 263 (1941):

"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."

Judge Kosinski is often named as one of the potential candidates for the U.S. Supreme Court.

Bonus II:

1. The question isn't whether Gates could have acted better under the circumstances--the question is what a government worker should do in someone else's house once he verifies there is no threat, no crime, and the owner wants him out.

2. Gates may have been outsmarted by the police officer. The officer probably couldn't arrest Gates inside his own home for "disorderly conduct," so he may have beckoned Gates outside, where he could plausibly argue that the public was affected or endangered by Gates' conduct.

Patrick S. says:

Based upon the holdings in the MA cases below, Dr. Gates' conduct did not even fall under the disorderly conduct statute. Whether this is an issue of the cop arresting him anyway or whether the cops were not properly trained on what is "disorderly conduct" in MA is another question:

In Commonwealth v. Mallahan, 72 Mass.App.Ct. 1103, 889 N.E.2d 77 (2008), a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

In Commonwealth v. Lopiano, (2004) 805 N.E.2d 522, 60 Mass.App.Ct. 723 (2004), an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. [In this case, according to the officer, Defendant was "yelling at me, you're violating my civil rights, then he began yelling at Ms. Carins, why are you doing this to me, you'll never go through with this."]

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

[See more law-related discussion here and Commonwealth v Feigenbaum, 404 Mass. 471 (1989)]

John Yoo Defends Bush Administration

Professor John Yoo recently wrote an article (WSJ, July 16, 2009) defending President Bush's warrantless wiretapping program. Mr. Yoo's reasoning is sound only if Americans desire a world where the Constitution is selectively applied using ethnic or religious criteria.

Mr. Yoo begins by using the government's incompetence as an excuse to ignore civil liberties. He says that post-9-11, we didn't know much about Al-Qaeda, so the best option was to tap everyone's telephones and computers to learn more. He also alleges that compliance with FISA--which requires a judge to approve a wiretap if the target is an American citizen or permanent resident--would have been cumbersome and impractical post-9-11.

Mr. Yoo's arguments have merit. A warrant requests permission to spy on a specific person, telephone number, or email account. If you don't know who the terrorists are or what email/telephone accounts they use because your foreign intelligence services are incompetent, how do you ask a court for a warrant? The only option--at least initially--is to start spying on everyone to narrow the list of likely suspects. Consequently, any discussion about warrantless wiretapping must begin by accepting Mr. Yoo's general premises: getting a warrant is cumbersome, and it prevents law enforcement agencies from identifying terrorists as quickly as possible.

Mr. Yoo damages his credibility, however, by not disclosing other relevant facts: one, existing law does not require a FISA court order to spy on non-U.S. citizens or non-lawfully admitted permanent resident aliens; two, most of the 9-11 terrorists were not American citizens or permanent residents; and three, his argument requires Americans to ignore the 4th Amendment, which protects U.S. persons from unreasonable and unlimited government surveillance.

FISA requires a warrant only when American citizens or permanent residents are involved. The CIA and FBI may intercept communications between two non-U.S. persons without a FISA warrant, as long as they follow certain procedures. While it is true that American residents may engage in terrorism, most of the 9-11 hijackers were not U.S. citizens or permanent residents. As a result, the Constitution's so-called "dysfunctional" warrant procedure had little to do with 9-11.

In fact, the CIA's and FBI's failure to prevent 9-11 was clearly not affected by any Constitutional limits. Think about it: even having access to every email and spoken word doesn't mean anything if our security agencies lack the linguistic and cultural competence to determine what is "noise" and what is relevant. It should also be obvious that any competent terrorist will use code words, so even intercepting every communication with the words "Muslim," "airplane," or "terrorist" won't help anyone find potential hijackers. Thus, Mr. Yoo's intent on creating reasons to ignore the Constitution is misplaced, because the real issue has always been how to properly gather and analyze relevant information.

Most troubling, however, is Mr. Yoo's failure to realize the real effect of warrantless spying--namely, that it gives carte-blanche to law enforcement to single out Americans based on nothing more than their ethnicity or religion. How much do you want to bet that singling out American citizens because of their religion or ethnicity will make them less loyal to America and law enforcement in particular? Why would people belonging to any targeted religion or ethnicity report suspicious persons or activity to law enforcement agencies if they think they will be treated differently than other Americans? Once you follow Mr. Yoo's belief that warrants are not required during wartime, you realize that what he's really saying is that every time there is a war, certain groups of Americans--whether Japanese, German, or Muslim--may be disproportionately targeted based on their religion or ethnic background. Under Mr. Yoo's logic, if Muslim terrorists attack Americans, then the quickest way to find more information is to target all communications involving Muslims or Islamic-related words. In reality, however, allowing the executive branch to selectively apply the 4th Amendment makes it harder to protect Americans.

Allow me to explain. Let's assume, as a purely theoretical exercise, that the primary threat of terrorism comes from Muslims. If we agree with Mr. Yoo's statement--that the lack of information about terrorists post-9-11 required suspending the Constitution--then it follows that we need more information about Muslims to protect America. What are the best sources of information about Muslims? People who go to mosques; people who have Muslim friends; people who eat in halal restaurants; and people who understand basic Muslim culture, allowing them to have comfortable interactions with Muslims. What groups of people fit into all of the aforementioned categories? Primarily Muslims. In general, a Muslim is more likely to have information about other Muslims, some of whom may be terrorists, than a non-Muslim. Overall, the best source of information about Muslims probably comes from Muslims themselves.

Once we accept that a) Muslims represent the greatest threat of terrorism (again, this is a purely theoretical exercise); and b) in general, Muslims have the most access to information about Muslims, then it should be follow that we would want to maximize the number of Muslims who are more loyal to the United States. As such, treating Muslims differently than other groups is a terrible idea. When a Muslim reads a webpage about how violent Islam is, do you think he or she becomes more or less likely to report potential terrorist activity to the government? When a Muslim reads that evangelical Christians believe that Islam is the natural enemy of Christianity, does that perception make it more or less likely that he will share information with other Christians? When a Muslim reads yet another anti-Islamic Daniel Pipes article, do you think he suddenly feels compelled to give up his religion and dedicate his life to finding Muslim terrorists? Allow me one last example: when a Muslim reads that his government's top legal advisor believes that the executive branch may spy on Americans without any checks and balances and realizes it means that his communications will be more heavily scrutinized than other Americans, does that make him more loyal or less loyal to America?

Each and every time a Muslim reads an ignorant statement about his religion or about the government spying on a mosque, he trusts his government less. This is a natural reaction. Anyone who believes his fellow citizens think he is not fully American because of his religion or ethnicity will probably isolate himself or associate only with people with similar backgrounds. This logical reaction--to withdraw and self-segregate--leads to less interaction, less openness, and less trust between Americans. We can prove that singling out people based on their religion or ethnic background leads to distrust and a lack of national allegiance by recognizing France's inability to assimilate its Muslim population. The French are notorious for believing that Muslims are not truly French and for attempting to restrict the exercise of Islamic modesty. As a result, in France, discrimination against Muslims is commonplace, which has led to riots. In America, law enforcement's disparate treatment of African-Americans caused riots, including the Watts Riots. (Note: despite America's participation in Abu Ghraib, Guantanamo Bay, and Iraq, America has not experienced any Muslim riots.)

When Mr. Yoo proposes to ignore the Constitution during wartime, he's saying it is acceptable to antagonize certain groups and make them less loyal to America during a time when we need all Americans to be more loyal. In order to maximize our chances of gaining viable intelligence regarding suspicious activity, it is vital that all Americans, regardless of their religion or ethnic background, feel loyal to their country and their government. Thus, in the real world, Mr. Yoo's proposed Constitutional interpretation restricts information about potential terrorists by weakening loyalty and increasing distrust of government, making us less safe.

Also, practical consequences aside, if Mr. Yoo is legally correct, why did America's founders specifically include a warrant requirement in the 4th Amendment if they believed the executive branch could freely spy on American citizens during wartime? The founders could have included a wartime exception within the 4th Amendment. They did not.

There is another problem with Mr. Yoo's argument. He states that in wartime, the President may bypass Constitutional safeguards to protect the American people because war requires quick action; however, post-9-11, the United States declared war on "terrorism," not a specific country. Such a war could last another hundred years or more. Without any oversight, who decides when the war is over and how to erase personal information gathered during the surveillance? Does the executive branch get to keep all the personal information it has gathered for the next wartime emergency? Without continuing oversight, who decides what information to keep, how to protect that information, and what information should be erased? What if Congress decides a war is over, but the President disagrees? If the executive branch believes an attack is imminent but does not want to share information with Congress, may it spy on Americans without a warrant? Most important, without a warrant procedure, who decides when to stop surveillance? After East Germany's experience with the Stasi, you would think that an educated person like Mr. Yoo would realize the need for safeguards.

Mr. Yoo's belief that the executive branch may ignore the 4th Amendment during wartime would be more reasonable if the FISA courts were unduly interfering with the terrorism investigations. In reality, FISA courts have rubber-stamped the government's requests for a warrant. From 1979 to 2006, FISA courts approved all but nine wiretapping applications. (See here for the statistics.)

While Mr. Yoo's basic premise is correct--the 4th Amendment is indeed cumbersome--from a practical and legal standpoint, his interpretation of the Constitution makes us all less safe. What is most interesting about Mr. Yoo is his utter lack of self-awareness. One of the most serious threats to the United States right now is North Korea. Mr. Yoo is ethnically Korean. If North Korea attacks Hawaii, will Mr. Yoo mind if the government spies on him and his family, unmolested by the 4th Amendment? He probably won't. Anyone who interprets the Constitution in such a way that approves of an American version of the Stasi clearly expects to be the one doing the monitoring, not ever the one being monitored. Perhaps Mr. Yoo, with his government connections, is more self-aware than I give him credit for.

Bonus: information from wiretapping isn't necessarily helpful. The following newstory further indicates that loyal citizens and their willingness to communicate with the government are essential elements of any effective counter-terrorism operation. From CNN:

Friday's report found that the intelligence gathered [from Bush's wiretapping program] was only a small part of counterterrorism work, and most intelligence officials interviewed for the report had trouble "citing specific instances where PSP reporting had directly contributed to counterterrorism successes."

Bonus: ROBERT FISK: No, not at all. Look, over and over again, we’ve been told about the enormous sophistication of the intercepts and the surveillance and the satellite pictures and so on. So why have they not got bin Laden 'til now? They were after him when I first met him in 1994. And then they were after him in 1996 when I met him. And then they were after him in 1997. If they have all this information, why didn't they use it? I’m sure they have bits and pieces. But, you see, the problem is that the Americans are blind on the ground. They don’t have—I love these phrases—HUMINT, human intelligence, on the ground in Afghanistan.