Recent blog posts

Scott Greenfield has a visceral reaction to mindfulness for lawyers: being ‘in the moment' is for idiots.

I find Scott's reaction more than a bit bizarre: While there are apparently charlatans selling a feel-good philosophy by the name of mindfulness to stressed-out lawyers, there also exists an altered mental state, commonly referred to as mindfulness, that it benefits our clients for us to achieve. That an experienced and established trial lawyer would reject this mental state outright is puzzling.

Like any beneficial mental state (or mindset), though, mindfulness is not universally beneficial. I solve many of my clients' problems not when I am focused on them but when I am doing other things - driving, for example - as my mind drifts. If I were mindful and wholly present to the drive between Dallas and Houston, rather than in trance and on autopilot, I would lose valuable problem-solving time.


Is Your Mind Set?

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Karl went to the store to buy a set of tools to fix his car. Only when he got home did he discover that all of the wrenches were SAE instead of metric. Discouraged, he walked back toward the store.

On the way Karl stopped, deep in thought. But while he stood there the freshly poured concrete of the sidewalk set, and Karl lost his best pair of shoes. Demoralized, he turned back home in his socks.

But Karl got lost in the dark, because the sun had already set. And for all we know he still wanders lost, in his stockinged feet, carrying the wrong set of tools.


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Donald Trump will keep his campaign promises just like he keeps promises in business: only as and when it continues to suit his interests.

The wall will not be built unless Trump invests in the Mexican ladder industry, in which case Mexico will not pay for it.

The yard man and the busboy will not be deported.


Lawyers who have gotten civil judgments against people publishing revenge porn:

  1. ;Kenton Hutcherson

  2. Kyle Bristow;


Fixing University Justice

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In reaction to the U.S. Department of Education Office of Civil Rights's Dear Colleague Letter of April 4, 2011, American universities have eliminated due process for students accused of sexual misconduct.

The Dear Colleague Letter does not relieve public universities of their obligation to provide due process to accused students. So public universities are caught between the anvil of the Dear Colleague Letter and the hammer of a civil-rights lawsuit.

Private universities are not state actors, and do not have the same due-process obligations: They may kick students out for any reason or for no reason. But they are obligated not to defame students, and publishing (to other universities, for example) false allegations of sexual misconduct is defamation. A university that is required by law to report findings of sexual misconduct on students' transcripts probably has a qualified privilege to do so (it is privileged unless done with actual malice, that is, reckless disregard for falsity), but a private university that is not required to do so but does is betting heavily that it is right.


Foundations and Empire

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Atlanta public radio had a story on Jason Clark's and my triumph in the Georgia Supreme Court on Monday. They reached out to neither Jason nor me, but to a "Hollie Manheimer, executive director of the Georgia First Amendment Foundation.

This "Georgia First Amendment Foundation" was nowhere to be seen when Jason and the Client and I were actually litigating the unconstitutionality of Georgia's insulting-a-bus-driver statute. They didn't write the brief, they didn't argue it, and they don't know squat about it. I think it's fair to say that Ms. Mannheimer didn't even read the opinion before commenting:

The problem is that it's so over broad. Who decides who's offended? Who decides who's disruptive?


Alice's Adventures in Lovett Hall

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I just finished assisting a Rice University student who had been falsely accused of sexual misconduct and was facing campus discipline. He had been "rusticated" - ordered not to come on campus without permission except for classes - causing him to fail an exam (first the execution, then the trial!) and he could have been expelled, with a permanent mark on his college record.

Did I mention he was falsely accused? Fortunately he had documentation showing that the complainant's story was not altogether true.

A Digression

You young'ns are communicating via Snapchat, which doesn't automatically keep a record of your communications. If you have communications with someone about having or not having sex, keep those Snaps. If you have communications at or around a time when you might be accused of sexual misconduct, keep those messages. It would really suck to have someone entice you over to her room, and then not have a record of the conversation when she later claimed that you had come over uninvited and misconducted yourself sexually. Want to be extra super safe? Record audio every time you are alone with an MOS / MSS / MPS.


After the Georgia Supreme Court's disappointing First Amendment showing in Scott v. State, upholding the state's dirty-talk-to-minors statute (for the children!) despite the Free Speech Clause (the Ninth Circuit Court of Appeals and the Texas Court of Criminal Appeals have both struck functionally identical statutes, and we have filed a cert petition in Scott citing this split in authority), I was somewhat cheered this morning to see that Georgia had in West v. State held unconstitutional section 20-2-1182 of the Georgia Code, which made it a crime for any person other than a student to "continue[] to upbraid, insult, or abuse any public school teacher, public school administrator, or public school bus driver in the presence and hearing of a pupil while on the premises of any public school or public school bus" and to fail to leave the premises after being told to do so by the offended party.

Here is the opinion.

No Good Deed

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The subject of the review (call her "Jane") doesn't advertise free consultations. Suzanne called her wanting free legal advice. Jane didn't give the free advice. Suzanne did not like that. Suzanne punished Jane.

Jane didn't give Suzanne an answer (or at least didn't give Suzanne the answer she wanted to hear); Topek and Topek spent 45 minutes on the phone with Suzanne, who never intended to hire them, and gave her the answer she wanted to hear. I wouldn't criticize them for that, and even if I would, I sure don't have room to - I have spent a whole lot of time on the phone trying to help people (because to me it feels good to help people) who never intended to hire me.

But I haven't yet had someone post a negative review online because I didn't provide satisfactory free advice. And Suzanne got the idea somewhere that lawyers must either "give an answer without payment" or "suck and be money hungry." And one plausible explanation for how Suzanne-class people got that idea is that lawyer-type people spent too much time on the phone trying to help them for free.


2016.041: Administrative

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If you get this twice via email, it means it's working. Due to popular demand (my Dad wasn't getting emails) I'm moving away from the "subscribe2" WordPress plugin that didn't work reliably, and to MailChimp, which should work better.

If you were subscribed before, I've moved your email address over to my MailChimp list. If you weren't, there's a new subscription box in the right column.

Once I get this foundering ship aright, I'll be inclined to write more.

2016.040: Frivolity

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I had to share this. I think it came out looking like a Dutch Renaissance painting.

I call it "Miniature Clydesdale With Human Skull" or "Hey, Ridiculous Dog, Where Are You Going With My Still Life?"

Beware The Friggerogenic Video

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Yesterday we had Trial by Myspace. Today Scott has Assault by Twitter in the First Degree, riffing off an article by a lawprof whose theory is that by sending a link to an epileptogenic video to a journalist, the sender committed an assault: "intentional creation of a reasonable apprehension of imminent bodily harm." An assault by threat, as we'd say in Texas - a class C misdemeanor, fine-only stuff.

There is nothing new or particularly interesting about online assaults by threat - any online threat could be an assault, provided that there is some imminence. It happens every day.

But this assault on the journalist is interesting for another reason. It's not only a threat to commit imminent harm - indeed, it's arguably not even a threat to commit harm - but an attempt to cause bodily injury. That'd be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It'd be a third-degree felony - up to 10 years in prison - if the assailant intended to cause serious bodily injury.

Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford's The World Beyond Your Head).


Trial By Myspace

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When I read this description of how all sorts of tech toys could be used to prevent human interaction in the courtroom of the future, I first thought, "surely Mitch Jackson doesn't try cases." But apparently he does.


The tech and legal issues are unbelievably complicated. The parties to this case are concerned that the average Orange County juror just isn't going to be able to get a good grasp on the issues and damages.


Regular readers know that for nearly three years, since right after killing the dirty-talk portion of Texas's Online Solicitation of a Minor statute, I've been going after the balance of that statute, which appears at first to forbid only actual solicitation (which is unprotected speech), but on further reading explicitly criminalizes protected fantasy by eliminating lack-of-defense and fantasy defenses. The argument is that the statute is constitutionally overbroad.

Texas lawyers know that I've racked up an impressive record of failure in the intermediate courts of appeals, which have uniformly held that the statute forbids "conduct" rather than speech.

Friends know that I'm not going to let that bunch of Mensa-aspiring civil lawyers running for reelection tell me what the U.S. Constitution protects. After all, until the Court of Criminal Appeals ruled 9–0 in Lo every court had upheld section 33.021(b) of the Texas Penal Code as well.


I took a closer look at John Casement's "LegalJot" website (archived here):

The New Jersey Courts' index of attorneys shows no "Tyler Schultz."

The New York Courts' attorney search shows no Erin Brooks.

California shows several John Russells, one of whom might be in the same age range as the guy in the picture. I've reached out to him to inquire.


2016.035: John Casement's Feedback

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When I talk about online marketing and social media to lawyers, I remind them that outsourcing their marketing is outsourcing their reputation. I point out that many people selling online marketing will lie to get their attention - to get you to read their emails or return their calls. And I ask them:

If they would lie to get your attention, why would you trust them with your reputation?

I got a call today from a "Denise McDermott" at 312-252-0605. The message was, "she is doing some work for the Inglis Law Firm that she wants to discuss." It's probably not a lie, but rather an omission: McDermott knows that if she leaves a message saying that she's selling whatever online marketing crap she's selling, I won't be returning her call. Fortunately for her, I won't be returning her call because I recognize her vague message as an attempt to get me to call her back without quite lying to me. Fortunate because my language when I'm tricked into calling someone tends toward the hurtful.


2016.034: It Is About the Truth

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Remember, it is not what you think about the Super Lawyers program, it is about what the potential client thinks!

Thus spake Bart Taylor, trying to sell advertising in the Super Lawyers online directory in an email purporting to come from Houston PI lawyer Randy Sorrels:

Lots of lawyers seem to agree with Bart. As exhibit "A," I would offer the trumpeting of bullshit "Top 100 Lawyers" "honors":


In Trial Theory I I concluded:

Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect. ((This is not entirely correct. There is something else that will change jurors' formed beliefs. I'll talk about it in another part of this discussion.))

Blockbuster evidence in this context has a technical meaning: it is evidence that is:


...That night, someone sent an e-mail to Vietnamese groups alleging appellant was going to Vietnam to "bow down" to Ho Chi Minh and the Vietnamese Communists......In 2014, appellant [Al Hoang] won the Republican primary for State Representative District 149. Nguyen continued to label appellant a Vietnamese Communist. In October of that year, Nguyen reported that appellant's father committed suicide in 2007 because appellant was a Communist. Nguyen also stated that appellant made the bomb with which he was threatened in 2012 to gain attention.From 2010 to the time suit was filed in October 2014, articles published in Thoi Bao called appellant "a Vietnamese Communist, an agent of Vietnamese Communist, or a spy of the Vietnamese Communist [sic]." These articles were also disseminated to Vietnamese groups and over the internet.

Appellees win: Appellant had failed to provide "clear and specific evidence that thestatements of which he complains were published with actual malice...."

While Hoang v. Nguyen was pending the same panel of the Fourteenth Court of Appeals - Justices Martha Hill Jamison, John Donovan, and Marc Brown - in State v. Stubbs upheld Section 33.07 of the Texas Penal Code in the face of an overbreadth challenge.


To know what to do at any point in a jury trial, we must have some theory of how the parts of the trial fit together.

In a felony jury trial with twelve jurors (and the requirement of a unanimous verdict) there are 4,095 permutations of verdicts that do not involve our client going to prison. ((Each juror's individual verdict can be either "guilty" or "not guilty." The combined verdict of the entire jury can be expressed as a 12-digit binary number, with each bit representing one juror's vote, 0 for guilty and 1 for not guilty. There are 2 12 = 4,096 12-digit binary numbers. Only one of them, 00000000000, or 0, is a unanimous guilty verdict.)) There is only one permutation that convicts our client. If each juror's verdict were independent of the others and there were a 50% chance that each juror would convict, there would be a 1 in 4,096 chance of a conviction.

But jurors' verdicts are not independent-one juror's verdict will affect another's-and the chance that any given juror will acquit is not necessarily 50%.

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