Posted on November 28, 2016 in Uncategorized

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.

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 Posted on November 21, 2016 in Uncategorized

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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 Posted on November 10, 2016 in Uncategorized

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.

The rust belt will go on rusting.

Unemployment will rise. ((Those jobs are lost to machines; not to Mexicans. A modern billion-dollar steel mill employs four hundred people, not fifty thousand.))

ISIS will not be defeated.

America's economic decline will continue as Trump's and Clinton's mutual cronies get richer.

And Trump will cast the blame on others.

Meanwhile, there's not a whole lot that you or I can do about it, so let's love our people, do our work, and enjoy the show.

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 Posted on November 08, 2016 in Uncategorized

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

1. ;Kenton Hutcherson

2. Kyle Bristow;

3. Marc Randazza;

4. Joseph Mathew

Notice something about the CCRI's list of attorneys: None of those lawyers who have successfully litigated revenge-porn suits for victims are on it.

?

While I am certain that penal revenge-porn statutes should and will eventually go the way of the dodo, I don't feel the same way about civil liability for revenge porn. Unlike a criminal judgment, a civil judgment serves to make the victim whole; unlike a criminal judgment, a civil judgment can be calibrated ($1 in damages, or $500,000?) to the wrong done; unlike a criminal judgment, a civil judgment does not destroy the defendant's future. Publishing revenge porn is socially corrosive behavior, and its victims should have a civil remedy for the actual harm done to them.

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 Posted on November 06, 2016 in Uncategorized

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.

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 Posted on November 03, 2016 in Uncategorized

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?

Yes and no. It is overbroad, but the problem is not who decides who is offended or disruptive. The problem is that the statute forbade critical speech even if it was not disruptive (another statute forbids disrupting school; that statute is content neutral). The problem is that we are allowed to offend each ther, and this right extends to upbraiding agents of the crown.

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 Posted on November 02, 2016 in Uncategorized

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.

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 Posted on October 31, 2016 in Uncategorized

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.

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 Posted on October 29, 2016 in Uncategorized

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.

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 Posted on October 24, 2016 in Uncategorized

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.

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