Posted on August 31, 2015 in Uncategorized

Black lives matter.

This is not to say that other lives don't matter.

It's gertruding, sorta. Saying "black lives matter" calls attention to the question of whether black lives matter like white lives matter. Responding "all lives matter" denies the importance of the question.

And it is a fair question: do black lives in America matter the way white lives do? The question has been raised lately in the cases of police shootings, with account after account of cops getting away scot-free after killing black people.

A digression: I'm not nearly as interested in writing about unjustified police killings as Scott Greenfield and the boys at F?a?u?l?t? ?L?i?n?e?s- ...

...F?a?u?l?t? ?L?i?n?e?s? ...

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 Posted on August 28, 2015 in Uncategorized

My oldest child and I were standing at the meat counter. I bumped him sideways with my shoulder. Not enough to knock him over, just enough for him to notice. He retaliated with a little more velocity (because teenager, plus I'm bigger than him). I sidestepped, and he overbalanced. I caught his fall, but it was still very amusing to me (almost as amusing as the time he advised my brother, who was trying to open our securely locked front gate, "pull harder").

This morning Scott Greenfield quotes Emily Bazelon, in Bazelon Forfeits Her Credibility:

"The discrepancy [between what is called rape on campus and what is called rape off-campus, Deborah Tuerkheimer] argues, diminishes the violation of victims outside universities, even though studies show they are actually more vulnerable to sexual assault than college students."

Follow along:

1. There is an epidemic of rapes on campus, so

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 Posted on August 16, 2015 in Uncategorized

(Go to the bottom of the post and click play.)

When I first read this, I have to admit, I had an ego reaction. Hey, I'm in my 40s!:

(That's an interview of Stan Schneider by Brandon Ball in the Summer 2015 HCCLA Defender.)

It's not the "you're not like Dick and Dan" that bothered me - I bring different skills to a practice of law that is different than it was when Dick DeGuerin or Dan Cogdell were my age.

It's the "leaders" comment that poked my ego.

Maybe Stan is being uncharacteristically inaccurate in his words - maybe by "leaders" he simply means "great lawyers." Dick DeGuerin, Dan Cogdell, Kent and Randy Schaffer, Jack Zimmermann, Jim Lavine, Mike Ramsey: all (and more of that generation whom Stan hasn't named - Tyrone Moncriffe, Katherine Scardino, Candy Elizondo, Lonnie Knowles, as well as these guys) are great lawyers who have gotten great results for their clients.

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 Posted on July 30, 2015 in Uncategorized

Yesterday Kelly Case, Judge of the 9th District Court in Montgomery County, Texas, found the remainder of Section 33.021 of the Texas Penal Code unconstitutional, and dismissed the case against a defendant charged with that crime. ((You can stop calling and emailing to tell me about it. I was there.))

Scared White Republican Voters are up in arms. Phil Grant is up in arms. ((To hear Phil Grant tell it, you would think that Montgomery County is a hotbed of pedophilia. Why is that? Are the SWRVs who flee the scary diversity of the city for the scared whiteness of MoCo especially prone to kiddy diddling?))

Judge Kelly Case and prosecutor Phil Grant both took the same oath: to preserve, protect, and defend the Constitution and laws of the United States and of this State. In holding the remainder of Section 33.021 unconstitutional, Case kept his oath. In his criticism of the decision, Grant calls into question his ability to keep his own oath.

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 Posted on July 30, 2015 in Uncategorized

Here's a quick summary (more than a soundbite, less than a brief) of the status of the remains of Texas's online-solicitation-of-a-minor statute.

The statute forbids adults soliciting people whom they believe are minors to have sex, but it also forbids their soliciting other adults whom they believe to be adults to have sex, as well as soliciting people to not have sex (that is, fantasy communications or communications with no intent to meet).

Soliciting a child to have sex, with the intent that a crime be committed, is unprotected speech.

Soliciting someone you believe to be a child to have sex, with the intent that a crime be committed, is probably unprotected speech.

But soliciting an adult to have sex is generally protected speech. And making solicitive noises to a child, with no intent to actually carry through, is protected speech. It's the intent to commit a (non-speech) crime that makes the speech unprotected.

So section 33.021, as it currently stands, forbids protected speech as well as unprotected speech.

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 Posted on July 18, 2015 in Uncategorized

From Texas Penal Code Section 43.02, effective September 1:

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:(1) offers to engage, agrees to engage, or engages in sexual conduct; or(2) solicits another in a public place to engage with the actor in sexual conduct for hire.(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:(1) offers to engage, agrees to engage, or engages in sexual conduct; or(2) solicits another in a public place to engage with the actor in sexual conduct for hire.(b-1) An offense is established under Subsection (a) regardless of whether the actor is offered or actually receives the fee. An offense is established under Subsection (b) regardless of whether the actor or another person on behalf of the actor offers or actually pays the fee.

So if you engage in sexual conduct in return for receipt of a fee, you commit a crime regardless of whether you received or even were offered a fee.

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 Posted on July 12, 2015 in Uncategorized

You've probably heard about the bakers in Oregon penalized $135k for refusing to bake a wedding cake for a lesbian couple. You probably haven't read the order. I have so that you won't have to.

(It's long-3,000-plus words-so tl;dr: The facts are fascinating, but if you must, jump over the facts to the conclusion.)

You may have heard that the bakers were also ordered not to talk about the case (true) or that they were fined for doxxing the couple (false). ((Posts to that effect are based on this language in the order:

The Agency's theory of liability is that since Respondents brought the case to the media's attention and kept it there by repeatedly appearing in public to make statements deriding Complainants, it was foreseeable that this attention would negatively impact Complainants, making Respondents liable for any resultant emotional suffering experienced by Complainants. The Agency also argues that Respondents are liable for negative third party social media directed at Complainants because it was a foreseeable consequence of the media attention.

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 Posted on July 11, 2015 in Uncategorized

I described in An Apostrophe too Far why, despite the undeniable truth that the criminal justice system would crash if every defendant refused to plead guilty, defense lawyers cannot crash the system. Tl;dr: "Prisoner's dilemma writ large."

I hypothesized a criminal-justice system, ours in micro, processing 100 defendants a year, with capacity for four jury trials (for Harris County, multiply by about 300). Twenty defendants of the hundred don't plead guilty, and eighteen of those twenty get their cases dismissed. Of the last two, one defendant is convicted and one is acquitted.

Each additional defendant who doesn't plead guilty will force the State to try or dismiss a case-his or someone else's. There is theoretically capacity for another two jury trials, but the system doesn't love jury trials, so a dismissal is more likely than another jury trial. For every additional defendant who refuses to plead guilty, there will likely be another dismissal.

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 Posted on July 09, 2015 in Uncategorized

In medieval Europe litigants would arm themselves and beat the hell out of each other to resolve what might now be considered legal issues. The loser was obviously in the wrong. Some litigants could select champions to do their fighting for them. I doubt that this happened often ((Most lawyers are exceedingly trial-averse; how much more trial-averse would litigants and their representatives be if losing meant disfigurement or death?)) but it would have been in both the litigant's and his champion's interest for the champion to be as good at his job as possible: shattered bones aren't healed by "I spent all the time I possibly could to prepare for this. I did the best I can. And I am a good champion."

Anyway, "trial lawyer as swordsman" is not a huge metaphorical stretch.

In Keith Johnstone's Impro for Storytellers ((Swordsmanship, trial, improv: it's all the same thing.)) he relates:

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 Posted on July 09, 2015 in Uncategorized

This is totally adorable:

Jim, a litigator with a busy practice, spends 20 minutes each morning practicing something called mindfulness meditation.

Meditation is great, but meditation is to mindfulness as "litigators" are to trial lawyers.

I've written about mindfulness before; the topic is getting some attention now. Scott Greenfield sees two threads of discussion: a) stress release for lawyers (which should be uncontroversial; and b) "put[ting] personal happiness ahead of... responsibilities,... claim[ing] under the guise of mindfulness that stress is an excuse to fail to do your job, to fail to fulfill your responsibility to your client." Scott picks this quote as an exemplar:

Practice cognitive restructuring. Recognize that your thoughts are not facts. Let's imagine you're at a hearing and the judge says, "Well, what about the decision in Smith vs. Jones? Why shouldn't that apply in this case?" Assuming you have no idea what the judge is talking about, your mind might think, "I didn't prepare enough. I'm a bad lawyer." You can use cognitive restructuring and challenge your thoughts by saying, "I spent all the time I possibly could to prepare for this hearing. I did the best I can. And I am a good lawyer."

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