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Recent Blog Posts
Proposition of the Week
I've bet HCCLA past-president Pat McCann lunch that the DJIA will close below 6000 before it closes above 9,000 (all in 2007 dollars) again.
Anyone else want a piece of that action?
Who Are These People?
Thanks to a reader, I downloaded the Houston Bar Association's 2008 Judicial Preference Poll, an incumbent lovefest. I'm guessing that among the 1300 attorneys who rated the criminal district court judges, half have never set foot in the criminal courthouse, except possibly as defendants because of a serious crack problem.
How is it that more people think that Brian Rains should keep his bench than that Roger Bridgwater should?
Ruben Guerrero over Bill Moore by 120 votes?
527 people who would like to retire Caprice Cosper?
How many rocks do you have to turn over to find 756 lawyers who think that Brian Rains should be judge for another four years?
The Houston Bar Association is a joke, and (at least as far as criminal benches are concerned; unlike the poll respondents I'm not going to opine on races that I know nothing about) its poll is a farce.
The Best Criminal Defense Lawyer in Houston
There's sometimes talk about who the best criminal-defense lawyer in Houston is, as though we are show dogs or golfers.
The truth, of course, is that there is no "best" overall. The lawyer who is best for one case might not be best for another; nobody can say that the thousand-dollar lawyer who gets a case dismissed was not the best lawyer for that case, nor that the six-figure lawyer whose client gets maxed out was the best lawyer for that case.
There are a few lawyers in Houston who would make most "best" lists. Some of them belong there; a few don't (but appear to because, in the 21st century, exposure is equated with competence) There are more who the criminal bar (both sides) know belong on the list who keep their heads down and never get named publicly. Lawyers in the know wouldn't have much trouble finding enough great Houston criminal-defense lawyers to fill out the Top 25; we would not be able to agree on which one is better than what one or what one is better than who. In 1994 the Chronicle polled judges and prosecutors on who they would choose to represent them, and published the results. (This was before I started practicing.) Judges and prosecutors voted for six defense lawyers each. The top choice, Dick DeGuerin (who I suspect is one of those on the 1994 list who would still do very well in such a poll) was named by only 28 of the 69 respondents. So not even a majority of the judges and prosecutors put the top votegetter in their top six.
Thus Spake Brian
Okay, so I finally got around to downloading and reading Miami criminal-defense lawyer Brian Tannebaum's e-book, The Truth About Hiring a Criminal Defense Lawyer. (After Brian asked me to review it, I found it by googling the title; I was pleased to see Defending People pop up in the first page of search results.)
Subtitled, "The whole truth and nothing but the truth, and not the ‘truth that will lead you to hire me.'", this little book covers much the first-time accused needs to know to have at least a fighting chance of hiring competent counsel, in six chapters entitled:
Money (forget about your money problems, and get the money; hire a lawyer you feel comfortable with, who charges more money than you wanted to spend);
Advertising (advertising works; don't fall for it);
Prior Results (no two cases are the same);
Expertise / Types of Criminal Defense Lawyers ("murder is a six-figure word");
Reciprocal Discovery, Anyone?
David Sklansky's fundamental theorem of poker:
Every time you play a hand differently from the way you would have played it if you could see all your opponents' cards, they gain; and every time you play your hand the same way you would have played it if you could see all their cards, they lose. Conversely, every time opponents play their hands differently from the way they would have if they could see all your cards, you gain; and every time they play their hands the same way they would have played if they could see all your cards, you lose.
There are two ways to help your opponents play their hands differently than they would if they had complete information: 1) keep them from having complete information; and 2) make them believe that the information they do have is incomplete.
In criminal defense practice, a Nasty Little Surprise (NLS) helps with both of these goals: it keeps the adversary from having complete information in this case, and it makes the adversary doubt in the next case whether the information he has is complete.
Six Things; or, Does the Market Have Buddha-Nature?
• Houston DWI lawyer Paul B. Kennedy (The Defense Rests) notes the similarities between coaching 6-and-under soccer and communicating with a jury. (I like seeing other lawyers looking for clues to better lawyering in other areas... other, that is, than The Art of War.)
• Maryland criminal-defense lawyer Jon Katz (Underdog Blog; note the new URL) talks about the power of mu. Mu: it's not nothing.
• Anonymous prosecutor Western Justice negotiates directly with defendants, and faces infection for it. GPTW.
On the financial front:
Jefferson on the Wisdom of the People
As one of America's foremost scholars of Imaginary History, I am compelled to correct the record on Sarah Palin's slightly erroneous fictional Jefferson misquote (Americablog). What Imaginary History tells us Jefferson in fact said is, "One cannot underestimate the wisdom of the people."
Fantastohistorical academia is riven over the issue of whether this was intended by Mr. Jefferson as an observation or an admonishment.
Unexpected Happy Endings
The terrain in last week's DUI jury trial shifted unexpectedly yesterday afternoon. Two of the State's witnesses decided that they had better things to do after lunch on a Friday than return to court.
One of the witnesses, the arresting officer who was on the stand when webroke at eight o'clock Thursday evening, had (I learned afterwards) been reluctant to come to court and had cussed out both of the trial prosecutors for compelling her to come testify. So the State was a little less surprised than I was when she failed to post Friday afternoon.
The State appropriately dismissed the DUI. After we quickly considered how to gain the most leverage from this happy turn of events, my client pled guilty to the failure-to-stop-and-give-information charge (to which he had confessed multiple times) and took deferred adjudication probation, which was the arrangement that he and I had sought from the beginning.
Looking for Your Money on the Street Where You Lost It
Trial lawyers are poker players. If you try cases and don't know how to play poker, learn. Don't play "online poker", where you can't look in the faces of the people whose money you're taking - that's not poker, it's a video game. Learn to play real poker at a real table with real human beings.
Trial lawyers have to be flexible. Don't just learn "Texas Hold'em", either. The casinos have popularized that game because it allows the most money to be bet in the shortest period of time (and therefore the largest hourly take for the house), but in my opinion it's in no other way superior to any other game. Learn to play five card stud, seven card stud, five card draw, low variations, split-pot high variations, and so forth. Read Herbert O. Yardley's Education of a Poker Player
A DUI Trial on Unmapped Uneven Terrain.
The terrain of a trial comprises the factors that the trial lawyers don't create - for example, the spirit of the times, the state of the law, the unchangeable facts and, to a great extent, the conduct of the judge.
The lawyers know what the spirit of the times, the state of the law, and the unchangeable facts are before trial begins. But with an unpredictable judge it is possible for the terrain to be very different than the lawyers expect. The judge's handling of the case can make the difference between holding the tactical high ground and being in the valley under the adversary's guns.
Sometimes it's an uphill struggle, sometimes it's a downhilll fight (or so I've been told). Right now I'm in a DUI (in Texas we call it DWI, but everyone else in the world seems to call it DUI) and failure to stop and give information (FSGI) jury trial on uncharted undulating ground. In the fog. The judge started out by interrupting my brief voir dire several times unnecessarily. Since jury selection is the most important part of trial, next time I'll ask him beforehand not to do that. Since getting the jury picked, the judge has made some unexpected rulings for us and some for the government.
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