A Round Tuit (7)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Home with the flu, Brian Tannebaum had some time to reflect this week on how lawyers interact with one another. Delirious with fever no doubt, he suggested that we have generally forsaken collegiality and treat our fellow counsel as though we're engaged in a war of all against all, rather than a common profession with efficient administration of a system of justice as its objective. He wrote that courteous, informal communications still have their place:

When did it get like this? When did lawyers have so much mistrust of each other that the most simple form of courtesy became the exception?

This is the shame of the Bar – that we criticize legislatures for making bad law from one case, but we treat all lawyers as if they were the asshole we just dealt with.

Countless times I have had lawyers tell me negative things about certain lawyers. But when I have dealt with that lawyer, there has been no problem. How simplistic are we lawyers that we cannot attempt to have a cordial relationship with a lawyer because we fear they will screw us?

This is not the practice I want to have. All you lawyers that treat every single lawyer as if they are going to screw you next, are part of the problem.

It has to stop somewhere.

There were a number of posts this week which offered some support for these views. In one of these, John Mesirow related the story of one lawyer whose laudable use of informal communications nonetheless failed to evidence a courteous, collegial relationship with opposing counsel:

Attorney David Cwik represented the Plaintiff in a medical malpractice case. He was not pleased when defense attorney Marilee Clausing filed a Motion to Dismiss because she claimed Mr. Cwik failed to disclose his expert witnesses. How did Mr. Cwik repond? He wrote her a letter with the following sentence:

Should you succeed on your motion, we would merely dismiss the case, refile it shortly thereafter, and in the interim send somebody over to perform a clitorectomy on you.

Advising us to "stop being such jerks", Jay O'Keeffe echoed some of Tannebaum's sentiments and further suggested that discourtesy and excessive formality betray weaknesses in one's case as much as these reflect badly on one's professionalism. He described the findings of a series of interviews conducted with judges and justices in his state:

The Robes uniformly told us that uncivil or personal argument does not work, and some of them even take it as a sign of weakness in the underlying argument. In other words, needless bluster either dilutes your argument (which is bad) or affirmatively signals its weakness to the court (which is worse).

....

Effective lawyers gain credibility with the court by providing useful information in a manner that is helpful and respectful of the court's time. That means carefully organized briefs without

• personal attacks,
• needless (ad)verbiage,
• string cites for uncontroversial propositions, and
• overly clever word choices and rhetorical flourishes.

It's the tight, well-structured brief that gives me pause these days. And when I can tell that my opponent was writing with a smile on his or her face, I really start to get worried.

James Lukaszewski also touched on the practical benefits of enhancing one's cooperative sensibilities:

The lesson for all attorneys is getting clearer by the day: Even though our system is adversarial at its root, as the number of cases getting to trial decreases, more and more forces are pushing for settlement. Increasingly, the answer is to find and hire lawyers who are comfortable being empathetic. Being empathetic is the opposite of being adversarial. Empathy means doing things that matter, where actions speak far louder than words. The concept of empathy is often described as “putting yourself in someone’s shoes.” If that other person is a victim, you’ll be causing yourself and your argument, as well as your attempts to settle, extraordinary damage. Better to step back and look at what the “victim” needs that you can provide, promptly, as a means of settlement and resolution.

Ninety-nine cases out of 100 filed will be settled, arbitrated, negotiated, dropped, or dismissed. Having your day in court is getting to be a pretty rare event.

Oh, and did I mention learning how to apologize? We’ll save that for another blog post.

Eric Cooperstein reminded us that while we're trying to get along better with one another as individuals, we shouldn't forget to be kinder to the much-maligned BigLaw firms we encounter online and off:

I am a solo and if large law firms crash, I am going to end up covered in dust.

There is a healthy tension between large law firms (“biglaw”) and solo or small firms (collectively, the “smalls”).

....

But we need each other. Biglaw needs smalls because the bigger they are, the more conflicts they have. Biglaw’s corporate clients are managed by people — who get divorced, have too much to drink before driving home, get into accidents, etc. Many of those matters need to be referred out. Smart lawyers refer clients to good lawyers they know who are reasonably priced and will treat the client well — like smalls. Biglaw attorneys also need mediators and arbitrators, and smalls are less likely to be conflicted out than neutrals at other large law firms.

Smalls need biglaw, too. Smalls simply do not have the brand recognition that biglaw has; smalls are constantly marketing and looking for referrals. Biglaw attorneys are a great source of referrals for smalls. Also, when a case comes in that is to big for a small to handle, the small firm needs to bring in some muscle. Obscure questions may arise in a client’s case that need special expertise that can be found only at a large firm. Relationships with biglaw are a two-way street.

As Rodney King once said, "People, I just want to say, you know, can we all get along? Can we get along? ....Please, we can get along here. We all can get along. I mean, we’re all stuck here for a while. Let’s try to work it out." I agree. Group hug!

Charon QC, a self-described "liberal atheist", wrote this week of religious freedom, recommending an essay by Jonathan Turley, which argued persuasively for protecting free speech with, rather than sacrificing it to, religious freedom internationally:

It was Voltaire who said “If god didn’t exist, it would be necessary to invent him” and history reveals that it was remarkably convenient to have a god and a structured system of rules as an instrument of social control. I hesitate to go further lest I find myself banged up at a secure police station in West London for breaching the Racial and Religious Hatred Act 2006.

I would like it to be perfectly clear, as a liberal atheist, (Lest some police officer is behind with his ‘nickings’ this month) that I have no intention of breaching s. 29B of the Racial and Religious Hatred Act because I am, just that, a liberal atheist – tolerant, inclusive, relaxed and laid back, about the things fellow human beings believe in.

I would, however, like to commend a piece written by Professor Turley, a US academic, on Blasphemy laws.

Professor Turley writes in USA Today...

Perhaps in an effort to rehabilitate the United States’ image in the Muslim world, the Obama administration has joined a U.N. effort to restrict religious speech. This country should never sacrifice freedom of expression on the altar of religion.

This morning, the latest sacrifice of Britons' freedoms caused Charon to lose his religion. The Labour government, for whom he has voted in the past, has now and for the foreseeable future lost his support for their surreptitious expansion of forfeiture laws, granting forfeiture authority to councils, quangos (quasi-nongovernmental organizations), and "organisations as diverse as Royal Mail, the Rural Payments Agency and Transport for London." Charon wrote:

Putting draconinian powers in the hands of council officials is not a clever move and will, inevitably, result in poorly trained council officials making poor decisions.

I’ve lost patience with Labour over their continued and almost relentless attack on common sense when it comes to civil liberties. Their much vaunted talk of human rights seems futile when they give with one hand yet take with the other. This decision will be a disaster like many other decisions of a Home Office which has not, to coin a phrase, been ‘fit for purpose’ for some time. And to think, after the crazies we have had running the Home Office in recent years, I thought that Alan Johnson might actually be vaguely sensible. This is not sensible... and while I am permitted in New Orwellian Labour Britain... I shall say so.

I have stopped voting labour.... this means I shall not be voting for the first time in nearly 30 years.

Elsewhere in Europe, Eugene Volokh points out that the Maltese courts "appear willing to enforce" a law prohibiting the vilification of the Roman Catholic church or religion. For its part, France has taken a hard line against the controversial Church of Scientology, convicting the organization of fraud and fining it nearly $1 Million for inducing two former members to spend tens of thousands of dollars on various Scientology-prescribed materials and treatments. The verdict and fine may be a prelude to an outright ban of the organization in France:

When the hearing opened, there were expectations that the court could order the group to be banned in France but due to a mixup over a law that passed in parliament just before the start of the trial in May, that option was ruled out.

The legislation has since been changed back to allow the dissolution of an organisation found guilty of fraud but because of the timing of the case, there was no question of forcing the Church of Scientology to be wound up.

"It is very regrettable that the law quietly changed before the trial," Georges Fenech, head of the Inter-ministerial Unit to Monitor and Fight Cults, told television station France 24.

"The system has now been put in place by parliament and it is certain that in the future, if new offences are committed, a ban could eventually be pronounced," he said.

In the U.S., the First Amendment guarantees both freedom of speech and free exercise of religion. Ashby Jones noted an odd case which illustrates the tension between the two:

Here’s a strange little constitutional riddle for you: When can a spoken statement constitute a violation of the First Amendment?

Answer: When the speaker is a government employee and the spoken statement amounts to an “establishment” of one religion over another.

....

In 2007, a public high-school teacher in Orange County, Calif., made some provocative statements in an AP history class slamming religion pretty hard.

The teacher, James Corbett... referred to Creationism as “religious, superstitious nonsense” during a 2007 lecture. Corbett made a host of other controversial statements as well. One of his students, Chad Farnan, sued Corbett and the school district, alleging a violation of his First Amendment Rights.

In May, a federal judge in Santa Ana, Calif., James Selna, granted summary judgment, partly in favor of Farnan and partly in favor of the defendants. Click here for the opinion. Specifically, Judge James Selna ruled that the “superstitious nonsense” comment violated Farnan’s rights, but ruled that nearly two dozen statements did not.

For all the difficulties religious folk encounter or perceive as a result of actions by some outside their religion, sometimes it's those within a religion which make things more difficult for their brethren. At the Popehat blog, Ezra wrote that in general "it's hard out there for a Jew" and it's particularly so in Israel:

Jews regard Saturday as the day of rest (for Mormons it’s Sunday), and for Orthodox Jews that means you don’t use any electricity (among other things.) There have been clever means found to get around this (timers on lights, etc) and among the most imp0rtant was the Sabbath elevator. It’s an elevator that stops at every floor so that the devout can sneak around the no using machinery or electricty rules. But no more, as Rabbi Yosef Shalom Elyashiv has ruled that the elevators are not kosher.

Apparently, there are buildings with these elevators all over the World, and this ruling is causing consternation. You see, many Jews had used the elevators to live in skyscrapers, leading to booms in tall buildings in Israel, and now they are stuck.

Isn't religion supposed to be uplifiting? In this case, it seems, it prevents the faithful from going either up or down. What a letdown!



Commenting on a disturbing article in the online magazine Slate, Matt Kaiser was given to wonder what might account for the poor performance of a number of his fellow attorneys in Maryland. The Slate article described how in ten percent of studied cases, sentencing worksheets were incorrectly completed by prosecutors and those errors were rubber-stamped by defense attorneys who are expected to note (at minimum) those errors which were not in their clients' favor. As it turns out, the errors worked both for and against defendants, resulting in improperly-long sentences for some and shorter sentences for others. Kaiser found the combined lack of competence of prosecutors and defense counsel "completely depressing"; in a follow-on post, he wrote:

Obviously, this is really not great press for Maryland lawyers. But, the more I think about it, I think it exposes a significant problem with how we think about criminal justice.

Our system is the adversary system. The idea is that if you have two sides who both present their version of the truth, the truth will come out. Yet, in the Slate article, we have a nice example of how the adversary system fails.

Whether it fails because lawyers are lazy, or not bright, or not motivated is kind of irrelevant. Lawyers are missing things when it comes to sentencing; what does it say about the error rate for these same lawyers when it comes to what happened in the underlying crimes?

At the a public defender blog, Gideon was critical of Chief Justice Roberts' dissent from a denial of Cert. which let stand a Virginia ruling that anonymous reports of drunk driving require other probable cause before a stop may be made. Roberts wrote that drunk driving is different from many other crimes: "Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances." Gideon was dismissive:

Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.

....

I don’t know why he chose to dissent in this case, but one can suspect that perhaps his whole intention isn’t really to distinguish between drunk driving and other offenses, but rather to do away with that pesky [Florida v.] J.L. case altogether.

Either way, good thing he was all alone in his dissent.

Scott Greenfield was also somewhat dubious about the Chief Justice's intentions and the merits of his argument:

Is it true that the "imminence of danger posed by drunk drivers" is worse than others? Worse than someone with a gun pointed at another person's head? Worse than an armed robber or carjacker? It may be true that drunk driving is always dangerous, but it fails to address the question of whether anyone is, in fact, driving drunk. Yet Chief Justice Roberts, joined by his associate Scalia, is prepared to waive away the inherent absence of credibility in the anonymous tip, long known to be a worthless cause to interfere with an individual's constitutional right to be left alone in the absence of verifying evidence, to permit law enforcement the authority to act immediately.

Why? Because drunk driving is different.

....

It is a tragedy when an innocent person is struck down by a drunk driver. It is a tragedy when an innocent person is struck down by a bullet. It's a tragedy when any person is harmed. The family of a crime victim takes no comfort in saying, "well, at least she wasn't killed by a drunk driver."

Some believe that there is a calculated campaign to manufacture fear of particular crimes to whip the public into a mindless frenzy, willing if not demanding that the government take away their rights to stop the scourge. This was largely accomplished during the war on drugs, and then the war on terror. Is it's replay in the war on drunk driving nothing more than an example of a tried and true tactic, working its way through our criminal law until there's an exception for everything?

Meanwhile, over in Britain, illegal filesharing has found an unexpected champion in MI5, the U.K.'s internal security agency. Geeklawyer reported that MI5 wants to curtail efforts to cut off internet access for illegal filesharers, as that would drive them to alternate access points (anonymous routing and encrypted connections, for example) and the more widespread adoption of such access would make domestic intelligence gathering more difficult. He noted that:

This is a classic example of the law of unintended consequences. One bunch of government sleaze bags (Peter ‘Pink Mandy’ Mandelson) want to make political cap­ital but in doing so it hampers another bunch of government sleaze bags also look­ing to make political capital: MI5 looking for ‘Product’ (in spook jargon) to sell to ministers.

How lucrative is that "market"? According to Cory Doctorow, "terrified London cops" spend more than £9 Million annually to gather surveillance information on non-violent protestors. Reporter Matt Salusbury recently discovered the depth of information gathered on his own activities:

I was shocked and a little afraid when I first noticed the police taking photos of me on demonstrations, back in 2000. There were police officers outside public meetings and benefit gigs too, in uniform, photographing and seemingly taking notes on my arrival and departure. I wondered why were they gathering all that information on me, just for showing up to the occasional demo. More disturbingly, what were they doing with all that data?

After two Data Protection Act requests to the police, I'm bemused rather than outraged to discover 17 extant entries on me in the Metropolitan police's Crimint (criminal intelligence) database. I feature in the database because I was "seen" or "observed" at various public events. In Crimint's most recently recorded entry on me in 2007, I was stopped and searched approaching an arms fair protest that I was reporting on, and found to have my press card on me. There is no suggestion in any of my Crimint reports of any remotely criminal activity.

Raymond Nimmer discussed the concept of an implied license in online postings, as affected by the recent Parker v. Yahoo!, Inc. case:

Implied licenses in law arise only in narrow circumstances and, then, only within narrow limitations. When created, they are typically subject to being revoked at will. Having posted works online does not preclude the copyright owner from rescinding that permission, in which case, subsequent use is infringing.

....

The policy tension here entails a conflict between rights owners who desire to retain control of their works, while still enjoying the benefits of online systems, and those who desire an Internet environment in which information is free, interrupted only in clearly stated rights-based limitations. Inevitably, law and practice will reach some balance between these. But some courts push too far favoring an environment in which property rights are not effectively maintained.

[The Parker] ruling requires that a copyright owner affirmatively give notice or use technological controls to prevent copying or lose the right to preclude at least this type of copying. But the source of the obligation to take affirmative steps lies in the court’s view that search engines are a structural part of the Internet and that rights owner’s must modify their conduct to accommodate the commercially profitable business that runs the search engines. That is wrong.

It is a tradition in U.S. contract law that mere silence does not generally constitute acceptance. So also in copyright law. But silence and inaction here was found to establish a quasi-contractual license. Parker inverts the meaning of property rights. It reduces the need for the search engines to negotiate permission from rights owners, but at the cost of control that otherwise would be vested in the property rights owner.

One unpleasant reality of life online, the "troll", was considered by a couple of prominent legal bloggers this week. Scott Greenfield spoke of a "Troll Tax":

An easy way to address the troll is to stiffen one's resolve and enjoy the magic of the delete button. You do not owe any commenter a forum to spout, no matter how much they believe they are entitled or how strenuously they demand their right. Remember that in the troll's world, they are the center of the universe. Your blawg is all about them. This is one of the reasons that they have no life outside of the internet. Their social skills tend to be lacking, and their grasp of their relative role in society is weak to nonexistent.

Many blawgers find it very difficult to delete comments. It runs against our grain of allowing free speech and expression, and makes us feel a little weak in our inability to let the negatives fly and confront them head on. It's a form of online machismo, like walking away from a fight. It smells of cowardice.

Get over it. There are millions of people out there, far more than anyone can fend off even if they were mere ants. Eventually, they will swarm you and, itty bitty bite by bite, eat you alive. To spend your time fighting with each and every one of them is unproductive, and likely futile. Besides, this isn't a fair fight, since the troll isn't interested in considering new thoughts but in getting you to pay attention to him. You cannot win with the troll.

....

It won't stop trolls from existing, from coming around, from bothering serious and thoughtful people. But it will prevent you from letting the troll dictate your efforts so that you can spend your time on matters more meaningful to you.

Norm Pattis touched upon a topic which has been widely-debated in the legal blogosphere many times, prohibitions against anonymous commenting, in describing his own struggles with abusive commenters, particularly in connection with his recent posting concerning the Trial Lawyers College:

Until recently, I published virtually every comment I received, anonymous or not. In the past week, I have become more selective.

....

I may well elect a policy against publication of anonymous posts, but I am not there yet. I do reserve the right to reject posts I don't understand, or that I think reflect the sort of rage best left to a psychiatrist. If you don't like it, don't read.

Before one decides how best to deal with the Troll Tax or whether to require his commenters to identify themselves, he must first write something that's worth commenting upon. If you boil down Greenfield's "Definitive Top 10 Rules for Successful Blawging & Twitting", that's what it comes to — be knowledgeable, be topical, be thoughtful, and be interesting; it amounts to a very commonsense approach to something which many paid consultants would have you believe is so complex that you need paid consultants to guide you through it. As my grandfather once advised me, however, common sense isn't especially common.

One blogger who needs no guidance from anyone is Jordan Furlong. He reported this week that the Association of Corporate Counsel (of which I'm a member) has announced that it will create a ratings system for law firms. This is all well and good in an internet-powered age of informed consumers, but Furlong has reservations about two aspects of the ACC's plan in particular — its decision to make the ratings accessible only to the organization's members rather than providing them also to the rated firms, and the planned use of anonymous ratings and comments. Furlong suggests that the latter decision will skew the results of the ratings and diminish the value of the ratings system overall:

Reviews by themselves are just opinions — they only become useful when you know something about the reviewer, when you can critique the critic. That’s the real benefit bestowed by widespread online access: not the power to evaluate, but the power to evaluate those doing the evaluating, to go behind the judgment to the judges. If you can’t do that – if you don’t know who’s saying great or terrible things about a given lawyer — then you can’t derive much value from what’s being said. People tend to be a lot more circumspect when their opinions are accompanied by their identity.

But the question of anonymous lawyer ratings points up an even larger issue — the fact that clients’ growing power needs to be matched by an equivalent acceptance of responsibility.

....

It’s not so easy to rate a lawyer when your name is attached to the rating, and it’s not so easy to complain about intransigent outside counsel when the question of your own transigence is brought into play. So while it’s true that it’s becoming a lot harder to be a lawyer, I’d also argue that it’s about to become a lot harder to be a client.

Finally this week, I'll write about yet another Scott Greenfield post. Why not? He's one of the best legal bloggers around and he's told me that every time I link to him, an angel gets its wings. Anne Reed linked to a very worthwhile post written by "a high-functioning autistic", discussing her recent jury duty experience. She offered some thoughtful advice for other potential jurors with conditions similar to hers and gave a frank assessment of her own limitations and her concerns that those limitations would prove damaging to her role as a juror:

Would being a juror be something interesting? Sure, I personally think it would have been cool to serve on a jury. But not at the cost of misconstruing the wrong verdict. I, along with, I'm certsin, other people on the spectrum, have a myriad of problems, and in a trial setting it can become glaringly obvious. My own main issues include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects (such as anime...), both of which impede on the function of a juror, which is to be an unbiased decider of the verdict. Or, me just wanting to not be sitting in the courtroom for whatever reason might compell me to leave (yes, I still have problems sitting still and will still rock in my chair, albeit rarely). I'd very likely have trouble discerning truth from fiction and would be a not-so-great or even disruptive juror.

Greenfield applauded her critical self-assessment but cautioned that others may not be so critical and the right to a fair jury trial requires that jurors be capable of serving effectively:

I admire her frank recognition of her strengths and weaknesses. The problem, as noted, is that the weaknesses, the difficulty with non-verbal communication, difficulty processing figurative speech, distractability, are beneath the surface. She knows this about herself, but there's a very good chance that it would never be notable during voir dire.

To her credit, she emphasizes throughout her discussion the need to tell the court and attorneys of her condition, although her purpose in doing so is less to inform them of a gap in her qualifications to sit than to be a self-advocate for her needs and accommodations. Self-advocacy is an important aspect of dealing with autism; Unfortunately, it's as much to serve her needs as fairness to the defendant.

Secondarily, while the author appears to have a firm understanding of her own issues and deficits, it's similarly problematic that many high-functioning autistics will view themselves as more capable than they truly are. Self-assessment is not merely unreliable, but to a person who has spent a great deal of their effort in overcoming challenges, the belief in their ability to do whatever they want to do is a strong incentive to deny their limitations. It may be critical to success in some ways, but it may well cloud their self-image of their capacity to serve as a juror.

....

While avoiding jury duty is nearly a national pastime, some people want to serve, seeing it as a fascinating opportunity to participate in an important civic experience. It's wonderful that they feel this way, but it similarly lends a reason to minimize the problems they might face in fulfilling their obligation.

The typical question asked, even if a potential juror was to approach to tell the court and lawyers that they are a high-functioning autistic, is whether that will impair their ability to serve. If the person wants to be a juror, the answer will likely be "no, it won't." Holding a person's life in your hands isn't a game, a fun way to spend a few days for those who want to play. We don't try cases so that jurors can enjoy the experience.

As a long-time supporter (well before it became fashionable) of people with an autism spectrum disorder and cognitive challenges, and one who has spent an enormous amount of time and energy trying to get others to recognize that these are human beings, entitled to enjoy and participate in everything life has to offer, it's difficult to find myself on this conceptual ledge, a place where I'm forced to conclude that autistics shouldn't go. But their right to a wonderful life must give way to a defendant's right to be judged by a jury without any impediment to fair and sound verdict.

As I'll be away next week, there will be no Round Tuit post next Wednesday. So, instead of coming here to read capsule summaries of every post Scott Greenfield writes over the next few days, you are encouraged to go directly to his Simple Justice blog and cut out the vacationing middleman. A few wingless angels can certainly wait until I return. I'll be back the Wednesday after next. Probably.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., FreeHugsCampaign.org, the University of Southern California ("Piss Christ" by Andres Serrano), and Paris Odds n Ends Thrift Store.