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Recent Blog Posts
A Scavenger's Feast, Delivered
If you're not already on Twitter, here's a good reason to dip your toe into the twitterstream: jury consultant Dennis Elias (twitter name @JuryVox) tweets frequent links to the latest jury research. For example:
Reflections on why we de-humanize our fellow humans. Implications for jury trial.
Advice on judging personality from the dawn of written history.
I didn't even have to be selective; those are Dennis's three most recent tweets (notice that I've added the most recent item from Dennis's Twitter RSS feed to my left sidebar). If there's not something there that piques your interest, then you probably aren't interested in trying cases to juries.
How to Turn Villains Into Victims
Heath and Deborah Campbell, the asshats who named their kids "Adolf Hitler Campbell", "JoyceLynn Aryan Nation Campbell", and "Honszlynn Hinler Jeannie Campbell", have to go to court to try to get their kids back after the three children were snatched by New Jersey's Division of Youth and Family Services. The local chief of police "didn't know why the children were taken but said his department received no reports of abuse or negligence." (If New Jersey's DYFS is anything like Texas's DPRS, we can pretty much count on there not being a valid reason.)
This sounds like a job for the local ACLU.
Do Not Go To Law School
If you are a college graduate, a college student, or a high school student, and you want to work for someone else, do not under any circumstances plan to go to law school. Instead read Temporary Attorney. Law schools are cranking out lawyers without any regard to how many legal jobs there are, and many lawyers are caught doing dead-end contract document review for $35 an hour.
"$35 an hour? Isn't that, like, $70,000 a year? That's more than I can make with my BA in Philosophy!"
Of course it is. But to make $70,000 a year, you will have to give up three years of work at whatever rate you can make with your BA You'll accrue $80,000 worth of debt. Let's say you can make an average of $30,000 a year (salary) for three years with your BA; you're $170,000 in the hole when you graduate from law school. Then you do contract document review at $70,000 a year (contract), which is worth maybe $55,000 a year (salary). It takes you seven years to recoup the cost (including opportunity cost) of law school.
Open Letter to the Judiciary
My Harris County colleagues may have seen this already - it was my President's Letter in the Winter 2008-09 HCCLA Defender - but I think it might be worth publishing a little more broadly.
To the Harris County Judiciary: Wow. That was a surprise, wasn't it? Who'd've thought that remaining judge in Harris County might require more than the imprimatur of the local Republican Party? Granted, the process was unpredictable, but so are the lives of the vast majority of the people who appear before you every day. Your future employment isn't looking quite so certain, but how many people do you know who know that they'll have the same job four years from now? How many of the people appearing before you know that they'll have the same job in twelve months, much less four years? We may all reasonably wish that the system were a little more rational. If you have any political stick, I'd love to see you using it to reform the Election Code so that judges - those elected officials who should be farthest removed from partisan politics - were chosen by some method other than partisan elections. You've got nothing to lose if you think you'd keep your jobs on your merits, without depending on ignorant straight-party voting. Until that far-off day when our judges are chosen for their capacity for justice rather than their party affiliation, the best that we can hope for is races that are close enough that they are decided by those who are in fact familiar with the candidates and the offices for which they are running. Let's be honest. Some of you don't treat the human beings in your courts very well. Some of you are discourteous; some are downright nasty: to the parties, to the witnesses, and to the lawyers. You're mostly polite to the jurors, of course, because in your mind they're voters. But all of those people appearing in your courts (except those already serving life sentences) are potential voters, and none of them are fooled. I read a CLE paper some years back by a civil judge who claimed, "jurors love me and they hate you." You might share that high opinion of the bench; I suspect that's what jurors politely tell you when you go back to talk to them after a trial. But that's not what they are saying to us lawyers. Jurors aren't stupid, and no matter how nicely you treat them they know who the jerk in the room is. The lawyers know it too; so do your fellow judges. Has a judge's personality ever affected the outcome of a Harris County judicial election? Not yet. But if elections get closer, it might. The recent election results prove that "make people afraid" is not always a winning strategy. The Republican judges' costly collective advertising campaign of fear didn't carry the day. Nor is "tough on crime" the magic phrase it once was, swinging wide the doors to the bench. As we've created more "criminals", we've also created more families of voters who recognize that "tough on crime" means "tough on our fathers, brothers, sisters and cousins." The voters don't care about the size of your docket; nor should they - the number of cases on the docket in a court has nothing to do with the fairness and justice handed out in that court. More than that, though, there is an opportunity cost to docket control: time spent fixated on the length of your bar on the docket size graph is time not spent doing justice. The legislature creates crimes and courts; the DA's Office prosecutes people and can make plea offers and dismiss cases. Either the legislature or the DA's Office could reduce your docket size; leave the "docket control" to them. So what's a judge to do to win over the educated voters? Do Justice. Love Mercy. Walk Humbly. You were all trial lawyers before you were judges; we trial lawyers are not renowned for our humility. But arrogance is unbecoming in trial lawyers, and even more so in those whose job is to judge others. Let the humble black robe remind you daily to walk humbly: if judges were meant to feel superior, they'd be issued bespoke suits instead of black housecoats. In the DA's Office, you were probably taught to respond to defense lawyers' pleas for mercy with incredulity. "This defendant doesn't deserve mercy," you'd sneer to the jury. But mercy is not something that anyone deserves - if it were deserved, it would not be mercy. So love mercy not because anyone deserves it but because nobody deserves it but you show it anyway. When you show someone mercy, it says nothing about him and everything about you. Humility and mercy are easy. Justice is trickier. Part of walking humbly is recognizing that you are not omniscient, and that your best effort at justice is a mere approximation. Clarence Darrow suggested that we cling to charity and understanding and mercy for this reason. But your job requires you on occasion to punish people. Mistakes are inevitable. You can't know how those mistakes will come back and bite you in the future. Frankly, I don't envy you the job. In two and four years all of you - Democrats and Republicans - will be opposed in elections. Even those of you who try their best to do justice, who love mercy, and who walk humbly will draw opponents, not because of the job you've done but because the vagaries of the system might defeat you. Those of you who do not do justice, love mercy, and walk humbly will draw determined opponents, because your shortcomings might defeat you. In a hundred years all of us - lawyers, judges, and defendants - will all be equally dead. Remember this the next time you are feeling superior to those who come before you for judgment. Even if you don't agree with me that treating people better makes you a better judge, consider that people are fondly remembered after their deaths not for their toughness but for their kindness; not for the people they punished but for the people they helped. Start working on that legacy now.
Wait: “Temporary Attorney” is a Career?
National Law Journal (H/T Omar Ha-Redeye)notes the decline of business for contract attorneys:
As law firms downsize, laid-off attorneys and new law school graduates unable to find jobs have been turning to an option they may never have imagined at law school: becoming contract attorneys - hired guns [or, more aptly, cannon fodder] for $35 an hour.Yet in the past couple of months, even that field appears to be showing signs of a slowdown.
There's discontent among the drones in the document review hives:
Contract attorneys appear a discontented lot. A host of blogs have popped up railing about life as a contract attorney, including Temporary Attorney: The Sweatshop Edition; [Houston-based] Document Review, Texas Style; Black Sheep of Philly Contract Attorneys; and My Attorney Blog: The Life of a Contract Attorney in Temp Town, Washington D.C. Resounding with complaints about working conditions at temp agencies - including cockroaches and a lack of air conditioning - nosediving fees and tax nightmares, as well as advice about which agencies to avoid, the blogs do not paint a pretty picture of life as a contract attorney.
Maybe He Meant it as Praise?
I've learned that Williamson County District Attorney John Bradley, in a continuing legal education program (I'm not giving the State Bar of Texas $90 even to rip a copy of the video for this post), attacked the motives of all criminal defense blawgers, who in his view are "only out to make a name for themselves" in order to "get clients." As exhibits, he used an image of Defending People and of Ft. Worth criminal-defense lawyer Shawn Matlock's The Matlock Blog.
"Make a name for myself"? Sure, why not? The same accusation could be leveled at anyone writing publicly anywhere about anything. I don't mind making a name for myself; the more people read me, the more I can spread the gospel of freedom over safety.
But "get clients"? That rates pretty highly (right up there with "best crime blawg") as one of the silliest things said about Defending People. (It suggests that Bradley doesn't read me, and that makes me sad.) Anyone who reads Defending People and hires me anyway was, well, going to hire me anyway.
In Support of the Nudge
New York criminal-defense lawyer Scott Greenfield and I usually agree on things, and he's a lot older and somewhat wiser than me (though still spry), so when he seems to disagree with me I take a careful look to see if maybe I'm wrong.
The client charged with a crime has three (in Texas, four) decisions that only he can make: whether to plead guilty (more broadly, the objectives of the representation, including whether to seek a lesser included offense), whether to try the case to judge or jury, whether to testify, and (in Texas) whether to ask that the judge or jury set punishment.
None of these are decisions to be taken lightly. And, as Scott says of the trial/plea decision, "many defendants are poorly educated, harbor disturbing misconceptions about the system and are ill-equipped to make such a monumentally serious decision."
This Is What They Teach at Georgetown?
Austin criminal-defense lawyer Dax Garvin laments in a comment to my Advice to a Young Criminal Defense Trial Lawyer post, "I just wish more cases would go to trial... it seems most clients justdon't want to take the risk, and I fully understand and respect that."
Miami criminal-defense lawyer Brian Tannebaum, fresh out of a federal drug conspiracy trial, shares his thoughts on trials, including this:
None of us try enough cases. I certainly don't. My clients are scared like everyone else's. They may want to go to trial, but the economy of scale tells them otherwise.With sentencing guidelines causing clients to believe that the 3 level acceptance of responsibility reduction is as good as it gets, or maybe some cooperation resulting in a 1/3 reduction, most clients decide to plead guilty and play nice with the judge, or the government, or both.As criminal-defense lawyers we can lament this all we want, but it is not us in the hot seat.After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.We know that cops and agents won't talk to us, but when a jury hears that, it's different. We know that deceit is legally used to gain confessions, but when a jury hears this, it's different. Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.We need to try more cases.
Advice to a Young Criminal Defense Trial Lawyer (bump)
Lots of new criminal-defense lawyers have discovered Defending People since this early post, Advice to a Young Criminal Defense Trial Lawyer. I'm bumping it back to the top because it's one of those posts that I think people might find helpful, and might not happen upon otherwise.
Mock Trial and Real Trial
I wrote here that
"Mock trial" is to trial as ballroom dancing is to gladiatorial combat
(which inspired my choice of Pollice Verso as the art for this blog).
Dallas criminal-defense lawyer Robert Guest has found another metaphor, which he applies to pro se litigation, but which I shall misappropriate in a moment:
The problem: proceeding pro se isn't real criminal defense anymore thanI am really on tour with Van Halen. Just like Guitar Hero, you are giving thesystem what it wants (money, speedy disposition); not defendinganything.
Mock trial is to trial as Guitar Hero is to touring with Van Halen.
Most excellent. Party on.
Robert's inspired "Guitar Hero" simile applies in just about any situation where someone thinks that this job might be as easy as it seems on TV.
Scott Greenfield asked recently for a phrase to describe the commenters who, having read the blawgs, think they are, by virtue of that experience, experts on the law. Voila: Hornbook Hero.
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