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Recent Blog Posts
An X-Gen Lawyer's Manifesto
As illustrated by the ‘problems' firms are experiencing with X and Y geners, there has been a global values evolution. These generations are less willing to accept the same incursions on their family and social lives in return for rewards in the future. They are also less tolerant of organisations that fail to give them the opportunity to be part of a larger cause, one that exists outside of a profit motive or the meaningless client service guff that is often dished up.
Andrew Hughes, The Law: All Guff and Discontent?
Inspired by this, Scott Greenfield writes:
The young set sees posts like this expert's and believes that they are right to demand changes that make them happy and fulfilled. Older lawyers, who are discontent with the law fail to notice the absence of logical nexus between their discontent and the Slackoisie solution (though they will figure it out soon enough when the college tuition bill arrives) see acquiescing to the demands of the Slackoisie as the path of least resistance. And everyone looking for an excuse to indulge their weaknesses and self-interest at the expense of their clients will embrace this nonsense.
Input Needed: Reptile in Criminal Cases
David Ball, co-author of Reptile, is asking criminal lawyers to help him develop a list of "reasons we lose criminal defense cases." He wants to hear from lawyers in the trenches who deal with these problems all the time. The list will help him and his team develop the use of Reptilian advocacy for criminal defense, where he believes it will become just as powerful for us as it has proven in civil cases for plaintiffs. Please take a few minutes to jot down your list; send it to ball@nc.rr.com. Subject line: CD Reptile.
David also wants to use responding attorneys for a sounding board as he and his team develop Reptilian criminal defense strategies.
Reptiles Revisited: Lizards Don't Label [updated]
It turns out that insurance defense lawyers are putting at least some effort into finding new ways to try cases. They have a magazine, For the Defense, and an associated blog (sadly uncommented-on). Kathy Cochran, writing on the blog, takes note of David Ball and Don Keenan's Reptile:
This book posits that jurors must be convinced that a verdict for the plaintiff will make the community safer because it will prevent the defendant or others similarly situated from harming the juror, his family, or someone close to him.As defense lawyers, we need to recognize this for what it is. It is an attempt to resurrect Golden Rule arguments, which are usually impermmissible. Jurors are not to be asked to put themselves in the place of a party and make a judgment based on that virtual reality. Ball and Keene provide advice to their readers on how to circumvent this evidentiary rule. They provide numerous examples of tactics that will appeal to the "reptilian" brains of jurors, asking them to put themselves in the same position as the plaintiff – a position of jeopardy that calls upon survival instincts.....I would suggest that defense lawyers obtain and read this treatise so as to recognize these "revolutionary" arguments. I invite anyone reading this blog to comment with ideas or case law that might undermine this new courtroom strategy.
Chew on This, Losers!
No doubt about it: it's hard out there for a new lawyer. There are vocal bloggers on the internet, failed wannabe attorneys who blame the game for their failings: L4L, BL1Y, Nando. It's much easier to hang out on JD Underground blaming the profession for the fact that you are living in your parents' basement, than to actually try to make something of yourself.
Here (via Walter Olson via Brian Tannebaum), by contrast, is the story of Wajahat Ali, a law school graduate who got over his sense of entitlement, girded his loins, and did legal battle (from his parents' house, no less) with the "shit-covered bear" of Wells Fargo Bank to save his first clients' home.
Melissa Martin Wins in the Court of Criminal Appeals
The Harris County District Attorney's Office's form charging instrument in "weenie waggling" indecent exposure cases has, for time immemorial, read:
[Defendant], hereafter styled the Defendant, heretofore on or about [Date], did then and there unlawfully expose his GENITALS to [Cop] with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.
Pretty standard stuff, it tracks the language of the statute, which any judge-and almost any lawyer-in the courthouse would have said was good enough.
Until today.
Today the Texas Court of Criminal Appeals held that the charging instrument was defective for failing to describe the act or acts constituting recklessness:
In this case, a trier of fact could not infer recklessness from the information because there is nothing inherently reckless about either exposing oneself or masturbating.
Somebody Call the Tort Reformers.
The industrial workplace can be a dangerous place. Accidents happen in work zones; people get hurt and killed. Isaac Sheridan knew this and Fernando Rodriguez knew this; they acknowledged it by strapping on hard hats and reflective vests at the beginning of every day's work in a construction zone.
On Thursday afternoon, when Sheridan was running his street sweeper and Rodriguez was driving his pickup in their workplace in Montgomery County, Texas, Rodriguez's pickup hit Sheridan's street sweeper, which turned over. Sheridan fell out (not wearing a seatbelt?) and was badly hurt.
Probably avoidable, definitely unfortunate, but an accident.
Montgomery County, Texas prosecutor Warren Diepraam (formerly of Harris County) doesn't see it this way at all. Diepraam has charged Rodriguez with aggravated assault; Rodriguez sits in jail in lieu of $100,000 bail. Most people can't make $100,000 bail (twice the bail, by the way, than is standard for a murder case in Harris County).
Support Loren Jackson
In the Houston Bar Association's Judicial Qualification poll, our District Clerk, Loren Jackson was rated "well qualified" by 1,056 of the responding lawyers, and "not qualified" by only 60. By contrast, his two challengers were rated "well qualified" by 58 and 40 lawyers, and "not qualified" by 244 and 256, respectively.
Nobody else Few others in the poll (covering judicial races and three administrative races) got over a thousand "well qualified" votes; outside of a couple of "who are these people?" JP races, nobody got as few "not qualified" votes as he.
That there were only 60 lawyers with enough of an ax to grind against Loren Jackson is evidence that Loren is not only very, very good at his job, but also good at his job in a way that lawyers from both political parties can get behind.
I've been studying Loren's challengers' playbook. They are hoping for a Republican straight-ticket sweep to usher them into office. Aside from that, they're going to make two arguments, both of which I will debunk here before you hear them anywhere else.
Don't Pitch Me
Houston criminal-defense lawyer Herman Martinez wrote (three weeks ago, but it hit my blog reader today):
We enjoy reading emails from people, but lately we have received some that are way too long. to read. If you can not say what you want to say in one or two paragraphs please pick up the phone and call our office. We are very easy to reach when we are not in trial. It would save you a lot of your time. I must admit that when I receive a long email from our contact form on this blog I think it is something that has been cut/pasted and emailed to several other criminal attorneys in Houston. While that might not be the case, I am conscious that I am not giving as much attention as I would if had received a phone call.
CCCL3: Anyone But Sharolyn Wood
I may build up more interest in this year's criminal court elections in Harris County, but for right now, this is what irks me:
Sharolyn Wood, who claimed after the election in 2008 that an "unspoken agreement" that experienced judges not be challenged was "tossed out," is now running for County Criminal Court At Law Number 3 in the Republican primary against experienced criminal lawyers Cary Hart, Joe Licata, and Natalie Flemming.
Set aside the fact that the self-entitlement of 2007 is not what we need in the criminal courthouse in 2011. Wood has, it appears, zero criminal-law experience. None. Zilch. My dog has more criminal-law experience than Sharolyn Wood.
So the irksome bit: this attitude of civil lawyers like Sharolyn Wood who, knowing nothing about criminal practice, think it's a good idea to come over to 1201 Franklin and start practicing criminal law. I think the idea is symptomatic of a materialistic deviancy that holds fighting over money more important than fighting over freedom.
Lawyers For All
I first saw the idea raised by John Kindley in this comment at Simple Justice: free criminal-defense lawyers for everyone, not just the indigent. I replied there that society should be willing to bear the full cost of prosecuting accused law-breakers, including the cost of due process.
Norm Pattis came up with the same idea:
It started as an inspiration and has metamorphosed into a conviction: If the state is to be represented in each and every criminal prosecution by prosecutors, experts and investigators wholly funded, then why aren't defendants?
Norm has started a blog called Lawyers For All to help spread the idea. There he asks,
Why aren't all Americans entitled as a matter of right to the services of appointed criminal counsel, together with access to the services of experts and investigators equal in caliber and expense to those serving the prosecution? Isn't it the case that the public defender, able as it is to provide representation to the poor, is really but a first step in fulfilling the dream of equal justice for all?
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