31 March 2010

A Round Tuit (25)

A Round Tuit

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.

Last Minute


I've done a couple dozen of these "Round Tuit" posts and, truth be told, sometimes I'm hard-pressed to define a most important (or at least prominent) topic of the week, let alone two. This past week, however, it's simple to see that the drama surrounding the execution of Hank Skinner in Texas was undoubtedly the most significant topic discussed in the legal blogosphere.

Skinner, who was convicted and sentenced to death fifteen years ago for the the triple-murder of his girlfriend and her two children, was within several hours of execution last Wednesday. There's been some credible information recently that Texas may have executed an innocent person; more recently, a judge cited numerous instances of death row inmates being absolved by DNA evidence when he ruled that a Texas death penalty statute failed under that state's constitution. So, was Hank Skinner guilty of the crimes for which he was going to be put to death? He was convicted, but then many innocent folk are. Does the DNA evidence collected in his case support the conviction?

No one knows.

Skinner claims that this evidence will show that someone else committed the crimes for which he was convicted. He and his attorneys had asked that as-yet-untested DNA evidence be tested; prosecutors refused. On the eve of Skinner's execution the defense asked the Texas Board of Pardon and Paroles for relief; they refused. Thus, with hours remaining before his sentence was to be carried-out, Skinner's fate rested in the hands of Texas Governor Rick Perry and the United States Supreme Court.

Noting the defense's efforts and the seemingly-commonsense notion that we should be sure of a man's guilt before he's executed, Brian Tannebaum was cynical about the public's interest in the fate of a death row prisoner:
Eh. We've got ourselves an execution today. Talk of possible innocence is distracting.

Some students at Northwestern looked at the case and compared DNA - they determined that although at his trial there was DNA showing he was in the house where the murders occurred, Skinner was innocent.

Add that to no confession or eyewitnesses, no motive or record of a violent past on Skinner's part, and it sounds like that pesky DNA should be tested.

Seventeen death row inmates have been released after DNA testing proved their innocence.

But hey, everyone catch Idol last night?
Walter Reaves has been there before, waiting for a phone call staying a client's fate; consequently, some of his thoughts last week were with Skinner's counsel:
One of his lawyers is Rob Owen. Rob is a friend of mine, and one of the best death penalty lawyers around. It takes a special kind of lawyer to devote themselves to death penalty work. They invest themselves in their cases, and developed friendships with their clients and families. They do so knowing that in the end they are going to lose most of the time. Each time they are devastated, but they pick themselves up and go on to the next case.

....

Rob and the other lawyers representing Hank Skinner are now basically on a death watch. They have done all they can do, and all that is left is waiting. They wait for the call from the governor’s office, which will tell them whether Hank Skinner lives or dies. It’s almost like waiting in an emergency room for the doctor to come talk to you.

Their ordeal brings back memories of my own. Memories that are not pleasant. It was not long ago that I was in the same position they are, waiting for news on Todd Willingham. I had hoped up until the final call that someone was going to step in and stop the proceedings. To this day I still do not understand how so many could look the other way at compelling evidence of innocence. Yet they did. The process and procedure was more important than the result.
Several bloggers sounded a call to action. Antonin Pribetic urged us to call and fax Governor Rick Perry and to sign an online petition:
Whether you support or oppose the death penalty, the issue is not simply factual guilt or innocence. The issue is access to justice. See also, The Skeptical Juror's post and The Medill Innocence Project coverage and ask yourself: why won't Texas Governor Rick Perry grant a a 30-day stay of execution to allow for DNA testing?

....

I implore my readers to call Governor Perry at Tel: 512-463-1782 Fax: 512-463-1849 Main number: 512-463-2000 or sign the Change.Org online petition.
David Sugerman authored a compelling open letter to the governor:
Those who oppose the death penalty make their strongest arguments by pointing to executions of prisoners who may be innocent of their crimes, notwithstanding their convictions. Death penalty opponents make their most compelling case when they point to major irregularities in proceedings. In short, execution of Hank Skinner without confirming DNA testing assists those who oppose the death penalty.

If DNA testing confirms Mr. Skinner’s guilt, nothing is lost by the stay. If on the other hand the testing establishes wrongful conviction, then avoiding his execution demonstrates the integrity of the Texas criminal justice system.
Jeff Gamso applauded those who called, wrote, faxed, tweeted, and otherwise contacted the governor, urging him to reconsider, but wasn't optimistic about the effect those calls would have:
Done? OK. Good for you. You did the right thing.
Unfortunately, it was almost certainly a waste of time. See, you want to know.

You want to stop the killing of an innocent person, or at least to be sure that Hank Skinner isn't innocent, before going and killing him. You're reasonable and responsible. You're detached. The truth matters to you. You're offended at the possibility that we could be making a mistake just because.

Good for you. You should feel that way.

But Perry doesn't. Oh, I don't think he's so cold-blooded that if he honestly believed Hank was innocent he'd ignore it and let the killing go forward today. He's not a sociopath. I think, that is, he's better than he imagines Hank Skinner probably to be.

....

Perry doesn't know and doesn't want to know and doesn't admit, even to himself, that there's a question. That's not confirmation blindness. He's not misreading the record to support what he believes. He's ignoring the record because it's easier never to know.

....

So do the right thing. But don't expect it from Perry.
Scott Greenfield marked "our last day with Hank":
For those who feel comfortable with the death penalty, Hank Skinner's death may also be the death of their comfort. The issue here is that there is untested DNA which may well show that Skinner isn't guilty, but the State of Texas will take no chance of upsetting its conviction and sentence. They could have tested it all and, if it went badly for Skinner, still kept his date with death. Instead, they fought it off.

....

Even for those who believe that the death penalty is a necessary and viable deterrent, the question looms why Texas wouldn't let the Skinner team have the rest of the evidence tested for DNA. If guilty as sin, then the DNA will show it. That Texas refused, stonewalled, fought and, upon the death of Hank Skinner, will have won, leaves a lingering doubt that no amount of blind faith can ignore.

There is no platitude that covers the execution of Hank Skinner to make us feel good about his execution. It doesn't matter what the outcome of the DNA tests would be. It only matters that Texas managed to avoid the tests and kill him anyway.
Mark Bennett's was the most eloquent voice during the hours before and after Skinner's scheduled execution time and he summed-up my own thoughts better than I could hope to:
I am not morally opposed to the death penalty. I recognize that “thou shalt not kill” is not a rule that can always be practically followed. There might be people who cannot be deterred or incapacitated by a lesser penalty. If we could ensure that only such people were executed, I would not oppose the death penalty.

But the mere possibility that factually innocent people might be executed is a deal-breaker for me. Death is different than other penalties, and we should be certain before imposing it.

Guilt, in death penalty cases, is determined by a death-qualified jury. A death-qualified jury is, by definition, not a representative subset of society. It is selected for bloodthirstiness. Once this jury has decided that a person is guilty and deserves killing, that decision is not reviewed. The legal rulings of the trial judge are reviewed, as are the performance of counsel and the conduct of the prosecution. But unless evidence of factual innocence shows ineffective assistance, prosecutorial misconduct, or some other Constitutional violation, it will not save a person from execution.

Whether you are a fan or a foe of the death penalty, you should favor the untested material being tested. Either it puts the final nails in Skinner’s coffin (as the DA thought it would), it shows nothing material, or it raises doubt about the identity of the killer. In any case, it’s better to know that all of the facts are known.
In another post, Bennett expressed the centrality of justice to our ideals and explained that much more is at stake when we choose to execute a condemned man:
Up through law school, we’re taught that the American criminal justice system is a wonderful thing. The organized bar—the ABA, local and state bar associations—pushes the same propaganda. It’s a lie.

The truth is that, while it may be better than any other system yet created, the U.S. criminal justice system objectively sucks. Factually-innocent people get punished every day. Pleas are coerced. Insane people get punished for doing insane things. Crappy lawyers take people’s lives in their hands. Children get treated as adults. Adults with the minds of children get treated as adults. Wealthy defendants get more justice than poor defendants.

The U.S. criminal justice system was developed by the rich and politically powerful for the benefit of the rich and politically powerful. Criminal defense lawyers stand up for the poor and the forgotten, the disenfranchised and damned.

The system is designed to be self-perpetuating. Part of its scheme is to take smart men and women of conscience and make them think they are obligated to support it. In law school we’re taught that we have a duty to the legal system. The Texas Lawyer’s Creed says, “I am entrusted by the People of Texas to preserve and improve our legal system.” But what if we can’t both preserve and improve the system?

How do you come to grips with the likelihood that the State of Texas is going to kill Hank Skinner without allowing the tests that might conclusively show Skinner’s guilt or might suggest that he was not the killer? You accept that this is indeed the big farce that it appears to be. “They” will not behave responsibly because they are determined to avoid or ignore any evidence that they might have made a mistake.

What if a system that shouldn’t be preserved refuses to be improved? Don’t we have an ethical and moral duty—a duty higher than any that can be imposed on us by the system in its own defense—to obstruct and destroy?

Welcome to the revolution.
Many of the experienced attorneys who blogged about Skinner's pending execution noted the extraordinarily long odds that either the governor or the Supreme Court would stay proceedings and permit time for testing of the potentially exculpatory DNA evidence. The wonderful thing about long odds, even the longest of long odds, is that these are non-zero; there is a chance, however remote, that the hoped-for result will occur.

Against all odds, our last day with Hank continued, as Lyle Denniston reported:
The Supreme Court on Wednesday evening delayed the execution in Texas of Henry W. Skinner, at least until the Court acts on his new case seeking to pursue a civil rights claim that he was denied a chance to have DNA evidence tested in an attempt to prove his innocence of a triple murder more than 16 years ago. The Court’s order blocked an execution that had been scheduled for 7 p.m. Washington time. The Court has not yet scheduled its consideration of his pending appeal (Skinner v. Switzer, 09-9000; his stay application was 09A743).

....

In his petition for review, Skinner contended that he has a constitutional interest under state law in seeking to use evidence that would help prove his innocence, but that he has been frustrated in trying to vindicate that interest in state proceedings. In addition, the petition argued that the conflict among lower courts on whether a DNA access claim can be pursued under civil rights law, or only under habeas law, has intensified since the Supreme Court agreed to examine that issue in the Osborne case last Term. Thus, it said, the need for Supreme Court guidance is now “more urgent.”

Lawyers on both sides have completed all of the filings in the case on that issue, so the Court is expected to schedule it for Conference within a matter of weeks. In the meantime, the postponement granted Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided. If review is denied, the postponement will expire automatically and the state could then schedule execution anew. If review is granted, a ruling would not be expected until next Term, starting next October.
Mark Bennett provided an outstanding explanation of how, procedurally, this occurred:
If four justices agree to grant certiorari, the Supreme Court will consider the merits of the appeal—whether a state’s failure to test DNA can be challenged by a convict in a civil rights lawsuit. There is a split of authority—several federal appellate circuits allow such challenges, but not the Fourth Circuit or the Fifth Circuit—which is one of the reasons that the Supreme Court will sometimes grant certiorari.

The Supreme Court could resolve the circuit split against Skinner; this would have the same effect as denial of certiorari—Skinner would have no obvious way to compel the DNA testing. The stay would be lifted, and the State would set another execution date, probably within 30 days.

If the Supreme Court resolves the circuit split in Skinner’s favor, the case returns to the U.S. District Court to be heard on the merits. From there it is appealed again (whoever wins) to the Fifth Circuit Court of Appeals, and possibly back to the U.S. Supreme Court.

If the State is ordered to provide the evidence for testing and that ruling is upheld, the DNA gets tested. If it is exculpatory, it’s not entirely clear what Skinner’s remedy is. As I previously noted, factual innocence is not itself grounds for reversal of a death sentence. It has to be coupled with a constitutional violation like ineffective assistance of counsel (but here Skinner’s trial counsel has blocked an IAC claim by saying that the decision not to seek testing of the DNA was a strategic one) or prosecutorial misconduct.

In sum, Skinner still has two ways to lose in the U.S. Supreme Court: he could be denied certiorari, or he could be denied relief on the merits. Either way, he’s out of luck. Only if cert and relief on the merits are granted does Skinner have a chance—if he is innocent—of having his name cleared in this lifetime. Even then, it’s a long shot and it’ll keep his lawyers busy for years.
Mark Draughn was troubled by Bennett's observation that even if the DNA evidence is exculpatory, "it’s not entirely clear what Skinner’s remedy is":
So the defense lawyers end up casting about for some legal hook that will get them a retrial. Maybe they accuse the defendant's previous lawyer of being legally ineffective, or maybe they accuse the prosecutor of misconduct. Quite often they try to find some ruling by the original trial judge which they can appeal. In any case, the legal basis for the appeal is essentially a pretext to get the factual issue back before the court.

This is an ridiculous situation. Our court system apparently has no simple, honest method of dealing with the possibility that a criminal court followed all the correct procedures and -- perhaps due to facts unavailable at the time -- still reached an erroneous conclusion.
Brian Tannebaum criticized those who spun the Supreme Court stay as a victory for death penalty opponents:
Lost, entirely lost in this debate over Hank Skinner's execution, is the question of actual innocence. It is lost upon those that ridiculously argue Skinner should be executed now because the victims deserve justice.

The victims do deserve justice. But justice is not going to sleep and knowing the man you think committed the murders has been put to death. Justice is knowing the man put to death, is the murderer.

....

If you support the death penalty, and I do not, then you should insist that those put to death, are guilty.

Hank Skinner woke up today because the U.S. Supreme Court has some questions.

Questions that need to be asked. No matter on which side of this debate you reside.
Scott Henson reserved his criticism for Governor Rick Perry:
Governor Perry failed two important tests yesterday by failing to commute Skinner's sentence and forcing the Supreme Court to manage his business:

First, after he signed Timothy Cole's posthumous pardon last week, the open question remained, "Has the Governor learned anything from this experience about making sure innocence claims are fully vetted?" In the Skinner case, we got a quick answer: "No way." The attitudes that allowed innocent people to be convicted and potentially executed on his watch are still firmly entrenched.

Second, for a Governor so full of himself when he champions "states rights" and the Tenth Amendment, in this case he ignored the adage that with rights come responsibilities. Texas should be handling its own business on the Hank Skinner case, SCOTUS shouldn't have to intervene over and over because neither the Governor nor the courts have the courage to do the right thing. Governor Perry is calling for expanded state power but simultaneously demonstrating that he can't be trusted to use it wisely - that even matters of life and death will be measured according to their political calculus as opposed to the interests of justice.
Scott Greenfield and Brian Tannebaum noted the widespread campaign for justice in the Skinner case which played-out on Twitter and other social media, contrasting it with the self-promotion which prevailed elsewhere online. Greenfield wrote:
We're not so delusional as to believe that it was our twitter campaign that moved the Supremes to grant an 11th hour stay, or had Texas Governor Rick Perry cowering in the corner of his governor house hiding from the digital townspeople with their pitchforks and torches. But it showed that they cared enough about the right thing to act. If it played any role, even to merely encourage those engaged in the real fight to stop the possible execution of an innocent man, it served a purpose. If it played no role whatsoever, at least we didn't turn our backs.

It was a day of gross juxtaposition, however. While some blawged, some twitted, some did both, in the name of keeping Hank Skinner alive long enough to make sure he was guilty before killing him, other lawyers were occupied with doing the things most important to them. They had no time to notice the impending execution of Hank Skinner. They were busy with more important things.

There was marketing to do.

....

It made me proud that I could be a part of the group of lawyers who raised a hand, maybe only a finger, to be part of the solution. It may have meant absolutely nothing to the grant of a stay or the transitory extension of Hank Skinner's life, but it's better to try than not. In contrast, the swell of lawyers who were too busy going about their daily lives online, eying themselves in the mirror to see if their hotpants made their butt look fat, may have found a new client while we were trying to save a life.

These are the choices that lawyers have to make in this digital age. Social media can be put to good use, but it's up to each of us to decide what a good use is, and whether trivial, self-serving interests are sufficient to make you feel that you're day wasn't wasted.
Tannebaum added:
It is a ridiculous notion to think that the Justices of the United States Supreme Court were surfing twitter yesterday and saw the outpouring of interest. It is less ridiculous to think that their young clerks and staff may have seen the posts.

But let's accept the argument that not a single person at the Supreme Court saw a single message about Hank Skinner's pending execution. Let's accept that the stay was granted without any knowledge of the online campaign.

The shame of it is that the social media marketers, some who are lawyers, largely stayed out of the postings. It wasn't part of their marketing campaign, it wasn't part of their "brand," and it wasn't self-promotion. It is these low-life marketers who only see social media as advertising, self-promotion, and a method to talk about "me."

....

That a message was spread of a possible injustice about to occur is so beyond the mindset of these social media types that all they can do is try to dissuade anyone who may think that social media can be used for a good, relevant purpose.

Yesterday the lawyers came together to pass along information to their colleagues and friends about a real legal issue that mattered.

The social media lawyer marketers, watching their world become one of relevance and not gamesmanship, took a pass.
Though I'm a moderate supporter of capital punishment, this entire episode has caused me to reconsider many of the assumptions I held. Notwithstanding, I can't say that my thinking has gone through as much of a change as Johnny Gardner's. He thought things through in an excellent (and tongue-in-cheek) post. I won't do him the injustice of excerpting it; read the whole thing and later on thank me for making you do it.

Do not want!!!

The Anti-Counterfeiting Trade Agreement (ACTA) has been in secret negotiations amongst representatives of several nations for some time now. Rumors of its outrageous terms have circulated for nearly as long, but were denied by officials and unverifiable owing to the veil of secrecy drawn by participants over their negotiations. When bureaucrats are fearful that their discussions, if fully understood, would incite such opposition as to jeopardize their careers, we're right to be concerned.

The secrecy was broken this week when a draft of the ACTA was leaked and quickly analyzed by knowledgeable folk throughout the blogosphere. Their verdict? It's as bad as feared and the Obama Administration has much to answer for, both for the contents of the document and their participation in the secret bargain which produced it.

Mike Masnick rounded-up a few of these observations — border searches of iPods and other devices which contain creative works, "a massive increase in secondary liability" without provisions for fair use, injunctive relief against "imminent infringement" of intellectual property rights — and suspected that these were just the tip of the iceberg. It is noteworthy that this far-ranging document is being positioned not as a treaty (subject to Congressional approval) but as an executive agreement to which the Administration can bind us on the President's soleauthority.

Jack Goldsmith and Lawrence Lessig outlined the constitutional implications of adopting ACTA as an executive agreement:
The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law.

....

These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a "congressional-executive" agreement. But the Obama administration has suggested it will adopt the pact as a "sole executive agreement" that requires only the president's approval.

....

Joining ACTA by sole executive agreement would far exceed... precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected.

....

These mostly secret negotiations have already violated the Obama administration's pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.
David Post was similarly concerned about the ACTA negotiators' secrecy and subterfuge, suggesting that this is the "copyright tail wagging the internet dog":
It’s hard to know... which is more appalling: the fact that the Obama Administration has conducted the ACTA negotiations in secret, or that it has indicated that it plans to adopt the final Agreement as an “Executive Order,” one that does not require submission to or ratification by the Senate (or any Congressional action whatsoever) to become effective.

I cannot imagine what justifications the Administration might proffer for this affront to our constitutional law-making schemes.... Those of us who follow copyright law have been here before, and we know what’s coming: the President signs the Agreement, and then changes to US Copyright law are introduced into the Congress and supporters will say something to the effect that the changes are required in order to bring our law into harmony with international norms and with our international obligations. It happened during the run-up to the 1998 Digital Millennium Copyright Act, and it will, I promise you, happen again here. It amounts, in effect, to presidential law-making, and if it isn’t (as Lessig and Goldsmith argue) unconstitutional, it damn well should be.

None of this would be of too much concern were the Agreement — as far as we can tell, given the veil of secrecy the Administration has thrown around it — full of substantively bad ideas and lousy law.
Margot Kaminski listed two dozen instances of those bad ideas and lousy laws; she wrote:
[ACTA] amps up IP protection and criminal sanctions, without respecting existing international institutional process and involving the interests of developing countries.

Unsurprisingly, the US is an IP maximalist here, pushing for the strongest provisions. Singapore is a minimalist. Australia fluctuates depending on the provision. Japan appears to be on board with the US except for DMCA provisions, with which it heartily disagrees.

What's at stake here? Institutional process and legitimacy (why is this taking place outside of the World Trade Organization (WTO) and WIPO?), and a rush to standardization on approaches to the Internet around the US standard, which arguably isn't the ideal.

Privacy interests (implicated by data sharing with both other countries and with rights' holders) and liberty interests (why rush to the unreasonable US standard of criminalization?) are also very much at stake.
It's enough to make even the most loyal American, in the immortal words of Anthony Anderson's Burger Shack employee in Harold and Kumar Go to White Castle, "want to burn this motherfucker down." If you feel so inclined and wish to discuss your plans at the Popehat blog, Ken asks that you follow a few guidelines and work at least three common themes — comparing one's opposition to Hitler, for example — into your rant.

Across the water, Carl Gardner is adamant that Britain does not need a written constitution; he explains a viewpoint which may be a bit difficult for Americans to understand — constitutional change without what we would recognize as a constitution:
I love constitutional change. I think one of the best things about politics in Britain is that there’s continual debate about our constitutional arrangements and the way we protect rights, and as a result, regular and ongoing reform. At the moment we’re discussing changing the House of Lords further, and radically reforming libel law. Not long ago we gave more powers to the National Assembly for Wales, we continue to debate the wisdom of the domestic human rights law system we adopted twelve years ago (which we retain the option of abandoning) and the powers of local government. Just five examples where reform has happened recently, or is expected soon. One of my main complaints against a written constitution is that overnight, its effect would be to freeze our constitution, and make constitutional reform a much less important part of our national discourse as we found we were simply straitjacketed within the entrenched written arrangements we now had and were unable so easily to talk about and make these sort of piecemeal changes. I find it astonishing that this simple point isn’t more often grasped.
I respect Gardner's intellect tremendously and I suspect that once made up, his mind isn't easily changed. However, if he should reconsider, I hope that he and his fellow Britons will take our Constitution as their own. We're no longer using it and I'd like it to go to a good home.

Odds n Ends Shop

Rick Horowitz is one of my favorite legal bloggers and I'm glad anytime his writing get the attention it deserves. His recent post "And the Money Just Squirts Away" was typical of his work — well-observed, well-written, confrontational, and compelling. Why this post in particular garnered so much attention, however, is something of a mystery to him, as he mentioned on Twitter. Hopefully, this week's Round Tuit will send dozens more to his site, thereby deepening the mystery.

Many bloggers have had the opposite problem — they write brilliant posts which should find an appreciative audience but don't. The Popehat bloggers have experienced this themselves and aim to do something about it. As Ken describes, they're starting a new blogging carnival to give a second chance to those posts who were overlooked the first time around:
[I]nspired by the consistently excellent Blawg Review, I’ve decided to do something about it. Most blog reviews are dedicated to posts that other people thought were great. The Dance of the Wallflowers will be a blog carnival devoted to the blog posts that the bloggers themselves viewed as their beloved but ignored children.

....

What kind of blogs would I like to see participate? Well, I suspect that our core constituency will be the blogs you see in the Blawg Review and that we frequently link to — blogs that feature legal and political issues, if not blogs solely devoted to them. But I see this as an opportunity to learn about blogs I haven’t followed before, too.
JoAnna Forshee offered an overview of the various short presentations at the "IgniteLaw" event at the ABA's recent technology conference. Several seem worthwhile and, at just a half-dozen minutes each, won't require much of your time to view. Scott Greenfield was unimpressed by the discussions for the most part, but was particularly bothered by Ari Kaplan's legal marketing presentation and by the ABA's seal of approval on his message:
There are... a significant group of lawyers who are susceptible to this sort of proselytizing. The new lawyer. The lawyer without business. The crappy lawyer. The greedy lawyer. The desperate lawyer. And as one lawyer jumps on the bandwagon to "success", others fear that they will be left behind, beaten to the punch by the lawyer who seizes the opportunity to use every means available to market, and jumps on before he's left behind.

Why would they take this seriously? This is the ABA. The American Bar Association, the staunch defender of America legal mores and tradition. If the ABA promotes it, it must support it. And if the ABA supports it, it must be fine. This is the way of the future or the ABA would want no part of it.

....

It's a fraud. Forget Ari Kaplan's frenetic, breathless extortion to market like a four year old plays with a Wii. It's a lie. One of the most offensive parts was the notion that legal ethics, being slow and plodding, resistant to change and unable adapt to ever changing technology, is to be ignored. The problem isn't with every new-found method of marketing being unethical, but rather with ethical approval lagging behind technology. Just do it, and eventually it will be fine.

This is being promoted across the internet by a group of people who do not practice law, but who earn a living by persuading people who do that it's okay to pay for their services, buy into their philosophy, and validate their business model. This isn't about your business model as lawyers, but their business model as snake oil salesmen.

That the ABA would tolerate this crap is a disgrace. That the ABA would promote this cabal determined to convince lawyers that ethics are no longer a part of our obligation is inexcusable. That they send this message to your computer is a conspiracy to commit wire fraud, because this is nothing but a lie. It is not acceptable to engage in unethical behavior, even if it can make you money, even if it involves cool technology, even if a bunch of former lawyers turned pitchmen say so.

What you won't see at IgniteLaw is anyone spending their six minutes telling lawyers to work hard, put their client's interests ahead of their own and conduct themselves with integrity and dignity, even if it means that they lose a few bucks in the process.
Brian Tannebaum took issue with IgniteLaw host Matthew Homann suggestion that "Your peers fear change, only because they fear you'll change better than they will." He wrote:
I consider myself a traditional lawyer. I built my practice by word of mouth referrals. I have an office. I wear a suit. I don't market myself to death or sit in Starbucks all day telling other lawyers how to use a computer. And yes, I think the way lawyers are being evangelized into the marketing world, is pathetic.

But I don't fear change.

What I fear, is new lawyers who listen to non-practicing lawyers go from conference, week in and week out to tell them all the wrong ways to get business, and that the way they are doing everything, is wrong. I fear many of the people who spoke here. I fear that I have witnessed a live version of everything I criticize.

That's what I fear.

I fear that we are creating a generation of marketers, and not advocates (unless they are advocates for themselves, and marketing, and their twitter account.)
Venkat Balasubramani posted a sensible and even-handed take on some of these concerns:
The message a young lawyer may take away from this (I'm assuming young lawyers attend these events, but maybe I'm wrong?) is that if you learn the tech and keep abreast of these technological developments (if you're an "early adopter") you are good to go. We're painting a picture that you can jump past the nuts and bolts of lawyering and focus on things like technology, social media etc.... If you don't learn the fundamentals of lawyering - assessing your client's issue, figuring out what they want to accomplish, and above all, figuring out how to achieve the result within the legal system - you may as well go home. All of Susskind's pontifications aside, the core of lawyering (at least in an adversarial setting) will never evolve away from understanding and digesting the law, having solid writing skills, and engaging in advocacy in front of a factfinder or tribunal. Maybe I'm wrong, maybe it will. But the day it does, I'll happily pack my bags and finally open up that restaurant that I've mused about over the years.

I realize the focus of the show is on technology in the legal profession so you can expect the focus to be on technology, but I'm still bothered by the lack of mention of the fundamentals. I think it's a disservice to young lawyers who may be attending or following along. Given that the ABA is putting on the event I would think this would be a concern to them? It's a lot tougher to learn the fundamentals than it is to learn the tech/social media stuff. The ABA should emphasize that in the early years, we should be spending much more time and energy learning the fundamentals.
Finally this week, if you're like me and the concept of "too much Charon and Insite Law Magazine" is as inconceivable as "Tea Party Nominee Sean Penn", the new "Charon Reports" and "Insite Newsletter" are very welcome. Check out the concept documents and get signed up to the mailing list so that you don't miss an issue.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., IlPostiglione.com, ICanHazCheezburger.com, and Paris Odds n Ends Thrift Store.

6 comments:

Carl Gardner said...

Thanks for the mention, Colin!

Colin Samuels said...

My pleasure, Carl. Let me know if you change your mind; one gently-used Constitution, free to good home! We'll throw in the amendments!

Rick Horowitz said...

Thanks for including me in another Round Tuit post!

And now I know why there was another round (hehe) of hits on the "Squirts" post!

Colin Samuels said...

The more links, the merrier! Let's see how high up we can drive your post when someone Googles information on Corcoran CA, the prison masturbation capital of California.

Johnny Gardner said...

Thank you for the mention. I truly feel honored.

Colin Samuels said...

I was very glad to include your post, as it was one of the more clever takes on the subject I've seen. Very well written (and with something to appeal to everyone, provided they don't read the entire thing)!