Posted on October 19, 2016 in Uncategorized

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?"

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 Posted on October 13, 2016 in Uncategorized

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.

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 Posted on October 12, 2016 in Uncategorized

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.

Weird.

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.

That's his excuse for using a jury pool that "consists of programmers and tech experts from the Silicon Valley, The East London Tech Center in the UK and from Bangalore in India."

[T]he jurors that are selected for the VARS trial program are experts and specialists from around the world who understand the issues, evidence, and arguments of the parties. The entire trial process is more efficient, and the chance for misunderstandings leading to an incorrect verdict is almost completely avoided.

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 Posted on October 11, 2016 in Uncategorized

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.

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 Posted on October 09, 2016 in Uncategorized

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.

But I'm betting that "John Russell, CA" is made up like Tyler Schultz and Erin Brooks, because:

Yes, you are correct: Crooked [pretend-]lawyer John Casement, on his website hawking "content written by attorneys" has invented two - and probably three - lawyers from whole cloth, inventing names and choosing stock photos to represent them.

This causes bar problems for Casement. [The joke's on me. The Missouri Directory of Lawyers shows no lawyer with the last name "Casement." So Casement isn't violating bar rules, which only apply to lawyers. He's just committing fraud.]

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 Posted on October 07, 2016 in Uncategorized

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.

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 Posted on September 15, 2016 in Uncategorized

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":

Here's Jim:

Grant:

Phil:

Joe:

The "Top 100" are not "the top 100 trial lawyers" (as Jim and Grant claim) "the top 100 trial lawyers in Texas" (as Phil claims) "the top 100 trial lawyers in criminal law" (as Joe claims) or even the top 100 trial lawyers in criminal law in Texas.

The "Top 100" are the top 100 lawyers willing to pay $350 to the "National Trial Lawyers" for the privilege of lying to potential clients about the ranking in a geographical area specifically gerrymandered to contain 100 or fewer such lawyers.

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 Posted on September 01, 2016 in Uncategorized

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:

Dispositive;

Incontrovertible; and

Unforeseen.

If the you or the State has primed the jury to expect the evidence, it is not unforeseen. If other evidence contradicts the evidence it is not incontrovertible. And if the story of the party who the evidence seems to disfavor still makes sense when the evidence is considered it is not dispositive.

Let's work our way back through the trial to see how the theory works.

Jury Deliberation

In jury deliberation, the jurors tend to go back and take a first vote. Then they work their way to a verdict. The way the initial split goes (toward guilty or not guilty) is almost always the way the final verdict goes. If you have seven jurors when the jury goes out, your client is probably going to be acquitted, or the jury hung. If the state has seven jurors at the first vote, your client is probably going to be convicted (or the jury hung). What changes minority jurors' beliefs is not the weight of the evidence, but the weight of the personalities against them.

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 Posted on August 30, 2016 in Uncategorized

...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...."

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 Posted on August 29, 2016 in Uncategorized

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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