16 December 2009

A Round Tuit (11)

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.

Anti-Facebook T-Shirt

I'm a proud non-Facebooker. I have my blog (blogs, if you count my occasional joint endeavor with Mike Semple Piggot at Unsilent Partners), a Twitter account, and a presence here and there on a few social networking sites, including LinkedIn. I don't see much need for another at this point and, frankly, I don't see much need for Facebook at any point. I'm not inclined to change my mind after reading about the recent changes Facebook has made to its privacy functionality. As I'm a "never will join Facebook", I suspect that Facebook couldn't care less what I think of those changes; they should be a bit more concerned about the uniformly-bad reactions I've seen from those who do use their service and others who are very-well-versed in privacy matters. Danielle Citron has praised the site as a "privacy norm entrepreneur" for some of its previous innovations, but is pretty non-plussed by the latest revisions to their privacy settings:
Facebook’s launch of its new privacy settings this week, however, dampened my enthusiasm about its role as a privacy change leader. To be sure, Facebook should be credited for explaining consumers’ choices more clearly with its new privacy settings. But unfortunately they tend to push users to share more information, more widely, than the previous settings. They also don’t provide a default setting that would permit more granular privacy choices vis-a-vis one’s social relationships.
Kevin Bankston and the Electronic Frontier Foundation have taken a close look at the new terms and are critical overall; though they consider the simpler privacy settings and per-post privacy options good changes from prior functionality, other changes are more suspect:
The new changes are intended to simplify Facebook's notoriously complex privacy settings and, in the words of today's privacy announcement to all Facebook users, "give you more control of your information." But do all of the changes really give Facebook users more control over their information? EFF took a close look at the changes to figure out which ones are for the better — and which ones are for the worse.

Our conclusion? These new "privacy" changes are clearly intended to push Facebook users to publicly share even more information than before. Even worse, the changes will actually reduce the amount of control that users have over some of their personal data.

Not to say that many of the changes aren't good for privacy. But other changes are bad, while a few are just plain ugly.
As Kashmir Hill noted, the rank-and-file Facebook user isn't the only one who might be tripped-up by these privacy changes — Facebook CEO Mark Zuckerberg also found his entire profile, shirtless party pics and all, suddenly a bit more public than he might've preferred. (Thanks to Diane Levin and Peter Black for leading me indirectly to that last link.)

Especially now, it seems that friends shouldn't let friends friend them on Facebook, and that's exactly what Cathy Gellis suggests. She explains that although Facebook describes the relationships between users as "friending", these operate very differently from friendships in the real world and can be a trap for the unwary:
There are lots of horror stories about Facebook users being "outed" in some unfortunate way in their real lives by something seen on their Facebook pages, like people being denied insurance coverage for looking too healthy, or even fugitives ending up captured because they posted about where they were. But interesting as those stories may be, what I want to focus on is the illusion of privacy Facebook fosters for its users, which thus enables so many to later be blindsided when content they thought was private is later proved not to be. In particular, I want to focus on the weakest link: friends.

The Facebook privacy model has many limitations, not the least of which is the cryptic and unintuitive UI that prevents even the most privacy-conscious people from using what privacy protections Facebook does afford as effectively as possible. But the most major shortcoming may be on its conceptual model of privacy through relationships.

In real life, it's a sensible model. You know whom in your life you trust, and with what information. You know who will keep your secrets, and you endow people with your information accordingly. Facebook, however, despite its concept of "friending," does not adequately mimic real life "friending." Real life has degrees of friendship, whereas for Facebook it tends to be all or nothing and it is hard, if not completely impossible, to endow "friends" with varying degrees of your information in the kind of nuanced way you would in real life.
Nuanced friendships, for better or worse, exist in the real world between judges and the lawyers who appear before them; these relationships are not forbidden per se by applicable ethics rules, but as Stephen Boyett reports, a recent Florida ethics opinion would forbid judges and lawyers from "friending" one another on Facebook, finding that such a link-up creates an appearance of impropriety regardless of a judge's substantive statements and conduct. Boyett notes, however, that the prohibition doesn't apply where lawyers become "fans" of a judge's campaign page:
[T]he Committee declined to set the same bar for judges’ campaign pages on sites like Facebook, stating that lawyers may be “fans” of an election effort without raising similar questions of undue influence so long as the manager of the judge’s page cannot “accept or reject the lawyer’s listing of himself or herself on the site.” Presumably, the affirmative act of accepting a “fan” would mirror the process by which judges and lawyers list each other as friends on their personal pages, raising questions of special influence.
Peter Vogel also noted the Florida opinion and suggests that its narrow premise makes its impact difficult to predict. Venkat Balasubramani thought that the Committee's singling-out of Facebook was "off base":
My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship?
Ilya Somin is also a bit perplexed about the real-world-versus-Facebook distinction Florida seems to have drawn; he wonders whether this different treatment is attributable to either misunderstanding or illogic:
At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all. Only those ignorant of the way these sites function would assume that a Facebook friend is likely to be “in a special position to influence the judge.”

The problem goes deeper than that, however.... [T]he Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them. Such a rule would be unduly harsh. Yet it would at least be consistent. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.
Robert Ambrogi has discussed the Florida opinion before; this week, he reports that South Carolina has joined Florida in addressing the ethical implications of judges' Facebooking:
The South Carolina opinion, issued in October, concerns a narrower issue than did the one from Florida. It addressed friending by judges, but not of lawyers who may appear before the judges. Instead, it addressed the question of whether a judge may friend law enforcement officers and employees who work in the judge's office.

The South Carolina Advisory Committee on Standards of Judicial Conduct concluded that a judge may be a member of Facebook and may friend law enforcement officers and employees as long as they do not discuss anything related to the judge's official position.


The key difference between the two opinions is in who a judge may friend without calling into question the judge's impartiality and integrity. A judge who friends courtroom employees provides no cause for concern, South Carolina says, but a judge who friends courtroom advocates does, Florida finds.
Even if ethics rules actively encouraged friending between them, I suspect that Connecticut public defender Gideon and Seattle DUI attorney Nick Juhl will not be writing cheerful notes on the other's Facebook wall anytime soon. Gideon has had enough of anti-PD advertising "articles" seeded by defense attorneys' marketers and criticized Juhl's firm:
Toward the end of that “article” is the money shot: links to a seattle dui attorney....

The article, however is not written by the Seattle DUI attorney. It’s written by some dude named Justin Steely. But when you click on his name, it takes you to the page of someone named “Austin Richeit”. So what’s a man like me to do? Google, obviously. The name looks like a fake. What of his doppelganger Justin Steely? Also a pseudonym of dubious repute.

So now, who or what is this Seattle DUI firm? ....Best I can tell it’s for some firm named Lovik & Juhl....

So either Lovik or Juhl created these pseudonyms to drive traffic to their site (and decided to unnecessarily trash public defenders along the way) or they hired someone to do the same.
That's certainly valid criticism of a questionable marketing practice, but what caught the attention of the Seattle Weekly's "Daily Weekly" blog was Gideon's deeming Juhl (so the Weekly surmises) a douchebag. Though Gideon wrote in comments to his original post that he did "feel a little bad for pulling out the d-word'", the Weekly folks were eager to fan the flames:
I've got e-mails in to both Lovik and Juhl to formally confirm or deny the d-bag claims. In the meantime, we can all only hope that the lawyers will have an equally mature comeback for Gideon, the scorned public defender who pulled back the curtain on the mighty and all-powerful Oz.

May I suggest, "poopyhead"?
Though Gideon blogs under a pseudonym, he's established a great deal of credibility throughout the legal blogosphere; he's also known in the — gasp! — real world by many other legal bloggers. Thus, even if he doesn't say exactly who he is, we can trust that he is what he says he is. Probably. "Trust" online doesn't come with a name (and isn't precluded for lack of one), something of which Carolyn Elefant was reminded when "James Chartrand", an ostensibly male copywriter and blogger, revealed that "he" was really a "she". Elefant writes:
But Chartrand did more than simply leave out information about her personal life or use a fake name. Instead, she intentionally created a completely false persona. Chartrand called herself a front man for her all male company, and described herself several times as a dad. She dissed mommy bloggers for being intolerant when she (then posing as he) "risked [her] balls" to comment in their online fora. She concocted a bogus excuse for not putting a photo of herself on the site. Even taking at face value Chartrand's contention that her kids would have starved if she didn't pose as a male (and it's hard for me to take anything that this blogger says at face value anymore), there were many other less offensive ways that Chartrand could have kept her gender hidden without creating an entirely fake facade.


As Kevin O'Keefe says... lawyers need to know whether a prospective blog or social media consultant whether they walk the walk. In this situation, if the only way that a copywriter can figure out how to sell services is by being dishonest, well, then, that's probably not the kind of person I want to work with.
Scott Greenfield takes that a step further, suggesting that we all need to be asking hard questions of those whom we rely on for internet-related guidance:
A whole industry has grown to promote the use of the internet to "network" and create "trusted relationships" with others. They teach us to market to potential clients and other lawyers by creating trust. Trust is the predominant, and most abused, word in online marketing.

It's hogwash. Utter, sheer,unadulterated hogwash.


On my website is my complete resume, with dates and details about who I am and what I've done. Every inch of it is completely verifiable. It's not their for promotional purposes, but transparency. Anyone and everyone who is interested can learn anything they want to know about me. I am what I am, no better or worse.

Some of the loudest, most prominent people addressing the blawgosphere aren't who they say they are. Not even close. James Chartrand is a woman. It doesn't matter if you can understand why she chose to change her gender, the point being that she could, she did, and she became something she isn't. Whether you want to see it as a white lie, it's still a lie.

Is there somebody who wants to be your guru? Got a product or service to sell? Says they can teach you how to get rich and famous like them? Have tens of thousand of sycophants, all believing they hold the magic secret to success? Do they emphasize how it's all about trust? Check under the hood. Look very closely. You may not like what you see.
Brian Tannebaum hasn't been shy about checking under the hood, naming names and confronting those attorneys whose online personae don't match-up with their professional credentials. His Twitter take-down of Kathleen Scanlon, a disgraced New York attorney who participated in a series of mortgage frauds, was a work of art. It's a damned shame that Scanlon deleted her side of the conversation; fortunately, reading through Tannebaum's side of the exchange (and Googling information about Scanlon's fraud and indictment) tells you all you need to know about her.

While this can all seem quite discouraging, I for one will continue to count as friends — and count on as friends — those whom I've "met" only in the virtual world. While in these modern times, "friend" does not mean exactly what Facebook thinks it means, it does still mean something. Notwithstanding, as the social networking visionary Ronald Reagan advised, "Trust, but verify."

Adam Smith Gravesite

I make no apologies for remaining a true believer in the power of the free market, even after all the turmoil we've experienced over the last couple of years; I'll admit, though, that it's been a little more lonely of late over here in the free market camp. It's nice to have Bruce MacEwen for company:
Markets permit, enable, encourage, and all but insist upon individuals finding their own highest uses in society (the real meaning of the Invisible Hand, as I construe it). Few things contribute more highly to human happiness.

Scarred as we all are by the events of last September (2008, that is), we may be tempted to retreat to the faux security of command and control by the best and brightest. Don't go there; don't even be tempted to go there.


[I]f you think the Thacher/Reagan era of deregulation and its aftermath was a misguided detour, think again. To recap [figures show economic growth from 1991 to the present]:
  • US up 63%
  • Canada 60%
  • UK 48%
  • France 35%
  • Germany 22%
  • Italy 19%
  • Japan 16%

Finally, if you think the Asian tigers are overtaking the US, here, courtesy of David Brooks in today's NYT, is an incontrovertible rebuttal: In 1975, US GDP amounted to 26.3% of world G.D.P. The US share today? 26.7%.

The genius of the free market, present and potent since before (yes, even before) Adam Smith, is not to be gainsaid.
Still, just because close government supervision of the economy hasn't been particularly successful here or elsewhere in recent... er, centuries doesn't mean that the next time we try it, we won't do it right. Perhaps the contributors to the recent "Government and Markets" conference know what they're doing; Dan Ernst points to the just-published conference volume Government and Markets: Toward a New Theory of Regulation, which promises:
After two generations of emphasis on governmental inefficiency and the need for deregulation, we now see growing interest in the possibility of constructive governance, alongside public calls for new, smarter regulation. Yet there is a real danger that regulatory reforms will be rooted in outdated ideas. As the financial crisis has shown, neither traditional market failure models nor public choice theory, by themselves, sufficiently inform or explain our current regulatory challenges. Regulatory studies, long neglected in an atmosphere focused on deregulatory work, is in critical need of new models and theories that can guide effective policy-making.
Hey, at least they're actually thinking-through this regulation thing; that's more than can be said for those who rushed to pass the Sarbanes-Oxley Act. With the Supreme Court scrutinizing the Constitutionality of some of the Act's provisions, Rick Pildes discussed, in a pair of posts, the Court's focus on dual for-cause removal requirements at the Public Company Accounting Oversight Board (PCAOB) created by SarBox. In his first post, he writes:
Independent agencies, like the SEC, the FCC, the FTC, have been held constitutional since the famous Humphrey’s Executor case. But today, Justice Scalia asserted -- at the very start of the government's argument -- that independent agencies are constitutional only because the President has the power to remove the Chair of these agencies. This did not seem a casual comment from Justice Scalia; it also seemed that some other Justices might share this view.


I find it hard to believe that Justice Scalia, or any other Justice, really thinks that, once he sits down to think it through. But that would seem to be the logic of the position that independent agencies are only constitutional if the President can remove their Chairs.
In his second post, Pildes describes some of the collateral effects a Court rejection of the PCAOB based upon the dual for-cause removal reasoning might cause:
[T]here was virtually no discussion of what the consequences across the government might be if the Court were to hold unconstitutional the administrative structures created to enforce the Sarbanes-Oxley Act.


For starters, it’s worth noting that this would create special constitutional doctrines that apply only to independent agencies. Other agencies and departments, like the Treasury Department or the EPA, can include inferior officers protected from at-will removal. But the independent agencies could not.


In any event, on the substantive issue: Dual for-cause removal structures, or variations of them, might be more common than the Court assumes. The question is how common is it for independent agencies – the various “commissions,” such as the FCC, FTC, FEC, NRC, and the like – to have inferior officers working for them who are protected by “for-cause” removal provisions. The entire Senior Executive Service (SES) of the government, which includes many high-level policy figures (who are certainly inferior officers) is protected by such provisions. See 5 U.S.C 7543 (a). Employees who fall under the protections of the Civil Service system are similarly protected by “for-cause” removal provisions, see 5 U.S.C. 7513 (a); I cannot say how many, if any, of this latter group would be considered inferior officers. From these sources alone, there are probably, then, hundreds of officials in the independent agencies who are separated from direct Presidential control by a “dual for-cause” removal structure.
The same instincts which led to the passage of Sarbanes-Oxley in the wake of the Enron, Worldcom, and Tyco scandals are now driving new regulations and legal actions to "fix" the mess caused by the meltdown in the subprime mortgage market. Whether the executives whose firms controlled that market will be held legally responsible for the debacle is an open question. As Kevin LaCroix reports, recent comments by the CEO of a capital firm have caused a bit of controversy:
In a provocative statement suggesting the unlikelihood of "damage awards" against subprime lenders’ directors and officers, XL Capital Ltd. CEO Michael McGavick yesterday told a Goldman Sachs Group conference that "being collectively stupid is not a basis for a lawsuit," according to a December 9, 2009 Bloomberg article.

As reflected in the article, McGavick indicated that investors have little chance of extracting damages awards from executives and board members at firms that lost money, as the article put it, "betting on subprime mortgages." McGavick is quoted as saying that its "very hard to pick out the management team that did something wrong to the level that the law requires."


As an initial matter I note that while it may be true that "collective stupidity" hardly represents a legal theory on which liability might be based, it also is not a very promising defense. Even setting aside the colorful use of the word "stupidity," it is not a great defense to argue that everybody managed to get it wrong, as proved to be the case in the connection with options backdating, for example.
For now at least, the folks who are really dealing with this mess aren't in Washington, D.C.; we're out here in the real world paying our underwater mortgages or not paying them and finding a way to live with the consequences. According to Mike Cernovich, those of us in the former group are "Debt Slaves":
You buy a home as an investment. The home's value drops, and might not rebound for a decade. Paying your mortgage would be no different from running a business at a loss. Yet like a good little debt slave, you'd feel guilty walking away. "But I promised the bank I'd pay."

That sentimentalism is exactly what banks are betting upon. It's like giving two weeks' notice. The company demands that you give notice before quitting. Yet many times they'll fire you on the spot without giving you two weeks' severance. "It's just business," they'll say, "It's not personal."

Walking away from a home is just business.


It's time for a New American Morality. It's time that the average American played by the same rules banks play by.
Admittedly, I felt more than a little defensive when I read Cernovich's post, but even after rereading it a couple of times I'm not sure that the premises of his argument are entirely correct, at least not for all of us. While a home is an investment, it's not just an investment. Stocks are just an investment; a home is something in which you build your life and the lives of those in your family and it's not a simple matter to cast that aside, even when it makes business sense to do so. Likening paying an underwater mortgage to running a business at a loss doesn't clarify things much for those of us who've owned our own small businesses or known others who have. After all, not all intangible value can be accurately dismissed as "sentimentalism". Still, I think that Cernovich's discussion of the morality of mortgage default is a worthwhile one. It's certainly given me something to think about.

Odds n Ends Shop

In my underwater home, Sundays from ten in the morning onward are all about watching football and considering standards of appellate review. Wait a second... that's Joseph Blocher's home; at my house, there's only the football. Blocher's recent post concerning the instant replay review standards in the NFL has prompted discussion across the blogosphere; he wrote:
Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call? Why not review them de novo?


An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?
Ilya Somin suspects the reason may be a pragmatic one:
One possible answer to Blocher’s question is that allowing de novo review on instant replay challenges would lead coaches to challenge more calls, which in turn would delay games unduly. However, the NFL has already addressed this problem by giving each team only two instant replay challenges per game. Even if more coaches will now use both of their challenges, the added loss of time is unlikely to be great. Moreover, any harm caused by loss of time must be weighed against the benefits of getting more critical calls right (presumably, rational coaches will save their challenges for dubious calls that are especially important).
Josh Patashnik's conclusion is that the stringent review standard is rooted less in pragmatism than in obfuscation:
First, I think it's worth pointing out that, just as appellate courts often don't defer to trial courts as much as their doctrines suggest they should, most referees don't truly impose an indisputability standard. If it's genuinely impossible to tell from a replay which team has the better claim, the call on the field will usually be upheld, but there are plenty of cases in which a call is reversed even though it's not completely conclusive that the call on the field was wrong. In practice, it's more like an intermediate standard--something more than de novo review, but something less than true indisputability.

Second, I have a different explanation for the heightened standard of review. It has to do with the interrelation between arbitrariness and legal procedure. One of the dirty secrets of football is that a huge number of referees' calls are, to a very large degree, arbitrary.... In these cases, review might help at the margin, but won't make the ultimate outcome appreciably less arbitrary, because the calls are so subjective even with perfectly clear video evidence.


But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive. That outcome, I think, would cause most fans significantly more anguish than the first scenario described above. In part, this is because of settled expectations--once the call goes for you on the field, you begin to internalize the outcome, and the loss of that benefit exceeds in magnitude the gain in utility you would get by having a marginal call reversed to go in your favor. But perhaps more important, by reversing the outcome, it draws attention to the arbitrariness of the call in the first place.
It seems logical, but as everyone knows, there's nothing arbitrary about NFL football; it's all a cold, calculating conspiracy to screw over the Seattle Seahawks and their long-suffering fans. Somin also remains unconvinced:
In my view, concerns about the exact nature of the process are only a tiny fraction of the pain fans feel when they think a bad call has gone against them. In any event, I think any small increase in hurt feelings is likely to be outweighed by increases in the accuracy of calls — to say nothing of the joy of the fans whose team wins the instant replay challenge.
Joy? I wouldn't know about that. Go Seachokes.

If there's a division between the haves and have-nots amongst football fans, it's nothing when compared with the widening division between academics at top law schools and practitioners in the field. Dave Hoffman recently suggested that a joint JD/PhD might soon be a must-have for entry into academia:
Five years ago, as law fellowships themselves exploded onto the scene, the purely strategic choice weighed decisively against the PhD outside of a few specialized fields –e.g., law and history, law and philosophy, law and corporate finance — where the PhD was a huge value-added on the entry-level market. But now consider today’s market, and put yourself in the position of an individual about to choose between applying for a two year fellowship or a PhD program, and your goal is to maximize the chance of getting a job at an American law school. In my view, it’s an easy choice (with a few qualifications): go PhD or go home.
Scott Greenfield, who's been amongst the most vocal in the blawgosphere in criticizing the disconnect between the theoretical law taught in schools and the practical law necessary beyond those schools, was concerned:
The implications are serious for lawyers, as the nice folks who are supposed to be teaching youngsters to be lawyers have made the personal choice to put as much distance as possible between themselves and the nastiness of legal profession. In the past, one might at least anticipate the most lawprofs spent a couple of years in the library of a large law firm or prosecutors office where they believed that they now knew everything there was to know about being a lawyer.

If Dave Hoffman is right, the closest they will ever come to a courtroom is one that has the word "Moot" in its name. Instead of gaining the benefit of learning about life in the trenches, their world view will be formed while running from one campus building to another, never realizing that there is a whole world outside the university to which they've never been exposed. And these will be the men and women who train future lawyers.


As law schools continue to compete for students, perhaps this will present an opening for those schools that aren't likely to be the top draw for the brainiest PhDs to counterprogram themselves as the practical law schools, "the law school where you actually learn how to be a lawyer." We can dream, can't we?
Ken Adams can see both sides:
If as a general matter practitioners are driven by expediency and are pressed for time, it would seem unpromising to leave to them the task of preparing the analytical underpinnings of transactional practice. With some notable exceptions... most practitioner-prepared materials that I consult are, at best, a good starting point for a given analysis. And they tend to recycle the conventional wisdom.

But I’m hardly suggesting that rarefied academe—more PhDs!—is better placed to produce analytical materials for transactional work. Instead, I’m simply suggesting that the odds are against reliable, insightful, and innovative materials being produced as a sideline, or by “volunteers.”


So we’d be better off if more transactional materials were produced by people with the necessary aptitude and the willingness to invest the time required to produce works of lasting value. We could do with more scholarship, and if you can deliver it, who cares what hat you wear.

Like many who don't try cases to juries on a regular basis, if ever (and like many who do), I've occasionally had my doubts about the capacity of juries to resolve complex issues rationally. The D.A. Confidential blog has a bit more faith:
[I]ndividual jurors can fixate on irrelevant details, I have spoken to every jury I have tried a case in front of, and there's no doubt that's true. But, my experience has been that in almost every instance, the one juror who is going off the reservation gets pulled back in by the other eleven. That's the beauty of having a dozen of 'em. You see, judges can fixate too. All of us can, and I'd argue that the more professional or experienced or knowledgeable we are in a field, the more entrenched we become in our fixations. But when you have twelve lay people who are not sure of the law, not masters of forensic science, they can bend and sway with the input of other people....

I would also argue that if a jury gets so hung up on an irrelevant point that a decision is not reached, or a wrong one reached, then that's our failing as lawyers. Throughout the trial we need to be explaining what matters and what doesn't, and we can do this explicitly in opening statements (to a great degree) and most definitely in closing argument.
If that blogger is adamant that closing arguments are necessary, Norm Pattis isn't entirely sure. Recently, he and his client made a tactical decision to forgo their closing arguments when it seemed a prudent risk to do so:
Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his "argument" was merely a repetition of the complaining witness' testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.


If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.

So we waived closing argument.


Of course, I worry that I made the wrong call in waiving argument. But part of that is sheer ego. I argue well. Like most defense lawyers I harbor deep fantasies of setting men free with the power of my voice and my skill as a rhetorician. But trial is not about the lawyers.
Pattis' fellow defense attorney Scott Greenfield wished him well but didn't agree with the decision to skip closing arguments:
[W]hen Norm says that he liked his jury, "[w]e trust that group," it's hubris run amok.

Juries are not to be trusted. It's not that the jurors aren't trustworthy. It's not that they are stupid or foolish or evil or hostile. It's that we never (emphasis on never) know what's really going on in their heads. We want to believe that we've picked a "smart and self-confident" jury, but we can't tell. And if they're self-confident, and it's not clear what that means with regard to a jury, how do we know if those satisfied smiles mean they are for us or against us. Both smiles look the same.


Closing argument is when we put it all together. We add up all the points scored throughout the trial and, mustering every ounce of our persuasiveness, make it as clear as possible. If we're lucky, they were listening and heard us win our points. When we raise it in argument, something clicks in their heads and they say to themselves, "oh yeah, I remember that." Now it has meaning. Until summation, it was one of a great many loose sounds that floated through the courtroom, disconnected from the many others.


As for me, I've never waived closing argument and can't imagine ever doing so. Let the prosecutor have two shots arguing against me. I only need one. But I would never give up that one shot to explain to the jury what they've just experienced.
Pattis' confidence and judgment might well have been well-founded, but as things turn out, so were his doubts; his client was convicted:
Should I have not waived closing argument and told the jury what I thought? Certainly, the decision not to do so is controversial. But I stand by the tactical decision. A jury prepared to convict on the decade's old allegation of a single witness without corroboration is a runaway train. Better perhaps to have thrown myself in front of it, I suppose.
Tom Goldstein announced what will surely be a welcome addition to his blog's incomparable analysis of Supreme Court matters — plain English:
The Supreme Court deals with a lot of technical legal issues. Our posts tend to be written in the same way, so that if you aren’t a lawyer it can be hard to understand exactly what we’re saying. We try not to go too deep into jargon, but it’s hard. As a result, we don’t connect with all of our readers as well as we could. Many of you aren’t lawyers. It’s important that everyone understand the Supreme Court, and we want to be a comprehensive resource.

So, on a regular basis, we’re going to step back and write about what’s happening at the Court in plain English.
One post at the SCOTUSBlog site this week which, while perhaps not meeting the "plain English" standard, was well-worth reading was Lyle Denniston's analysis of the "Honest Services" law at issue before the Court, a law he suggests is "beyond saving".

I'll conclude this week with a couple of cheers and jeers. Cheers to Geeklawyer for single-handedly saving the Inner Temple and Middle Temple libraries:
As a deeply, and unjustifiably, modest man Geeklawyer is too often loathe to accept the praise rightly due to him. Perhaps on this one occasion he may ascend to the stage to receive the bouquets of roses from a grateful legal librarian ship community. It seems that Inner and Middle Temple have decided that merging the two libraries is not as attractive a cost saving option as initially thought. Geeklawyer has posted on this topic before in uncharacteristically intemper­ate terms.


Geeklawyer will now be able to continue his second career of supply secret gins at work to the lady librarians, in exchange for sexual favours and being able to steal Halsbury’s laws.
Not as deserving of accolades this week, however, was the Department of Homeland Security which, as Kevin Underhill reports, managed to lose track of a criminal fugitive who worked in one of their offices and continued to work for them in another office after she fled:
Reports last week said that Tahaya Buchanan had simply walked into the U.S. Citizenship and Immigration Services office in Atlanta, despite the existence of a nationwide alert seeking her arrest. In fact, she apparently did this repeatedly for quite some time, because, you see, she worked there.


"We found it surprising [and] alarming," [prosecutor Michael] Morris said, "that an employee of the Department of Homeland Security is a fraudster, and we do not understand how she could have remained employed there with an open criminal warrant for her arrest remaining on the interstate system without being discovered."
NOTE: This post was updated after publication to fix a few typos, one which ruined an already weak joke. For these I apologize sincerely and unreservedly to everyone who read the uncorrected post or, indeed, anyone connected to the internet around that time.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Matthiu (DeviantArt), Organizations and Markets, and Paris Odds n Ends Thrift Store.

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