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Lawyernomics 2013
Read Scott Greenfield's closing keynote address for Lawyernomics this week in Las Vegas. There's a race to the bottom in lawyer online marketing-"ultra-competitive business landscape,"* as Lawyernomics huckster Avvo would have it-Lawyernomics is there to psych lawyers up for that race-using Yelp! Twitter! Google! Virgin America!**-and Greenfield will*** exhort Lawyernomics attendees to go out there and win it:
* * * * *Whatever sleazy thing the virtual lawyer does that angers you, frustrates you, makes you wonder why you checked the "Yes, I'm a'coming" box on the Cooley response card, don't let it get you down. Just lace up those running shoes and be one step sleazier, one lie better, and you become the winner in the race to the bottom.Until, of course, the virtual lawyer will then slide in beneath you. But there is always something you can do to go lower. Just don't be like me and blush, or you will never make it in the ultra-competitive landscape of internet marketing.Now, go out and be the best virtual lawyer you can be. Remember, you can always go lower.
Limitations and the Ken Anderson Prosecution
Former Williamson County prosecutor (and now Williamson County District Judge) Ken Anderson has been charged by a court of inquiry with 1) criminal contempt of court; 2) tampering with or fabricating physical evidence; and 3) tampering with governmental records for his prosecution of Michael Morton. (Findings of Fact and Conclusions of Law, PDF, OCRed.) Which is nice-prosecutors who tamper with evidence and records to convict people of crimes (most especially, but not only, a prosecutor who, like Anderson, "does not believe in the release of [exculpatory] evidence if it may result in freeing an individual that he believes is guilty") should be prosecuted, and should have to do every day of the sentences that their misdeeds brought their victims-but to little effect.
The statute of limitations for tampering with governmental records with intent to harm another and for tampering with physical evidence, both third-degree felonies, is three years. There is no "discovery rule"-no argument that the statute of limitations begins to run when the bad acts are discovered. Anderson's bad acts were in 1987.
Quarles and its Progeny: Tsarnaev
Everyone knows the Miranda warnings. We have heard them ten thousand times on TV.
Not everyone knows their significance-clients often ask me whether it's significant that they were not read their rights when they were arrested. It is not; the rule of Miranda is this: A statement made by a defendant as a result of custodial interrogation is not admissible against him unless, before making the statement, he was advised of certain of his Constitutional rights. So the police only need to read you your rights when they are going to question you while you are in custody. Under Texas law the mere reading of rights has no legal significance-the reading must be documented by audio recording or acknowledged in writing by the defendant-so Texas cops don't bother to read arrestees their rights.
In New York v. Quarles the Supreme Court created a "narrow" exception to the Miranda rule. The reasoning was that public safety trumped Miranda's stated goal of ensuring that subjects of police interrogation knew their rights:
Spousal Privilege, Illustrated
This is from the arrest warrant affidavit in the case of Kim Williams, the wife of Eric Williams, the former justice of the peace who is suspected of murdering three people in Kaufman County, Texas:
On April 16, 2013 an interview with defendant, Kim Lene Williams was conducted at the Kaufman County Law Enforcement Center. During the interview, Kim Williams confessed to her involvement to the scheme and course of conduct in the shooting deaths of Mark Hasse, Michael McLelland and Cynthia McLelland. Kim Williams described in detail her role along with that of her husband, Eric Williams whom she reported to have shot to death Mark Hasse on January 31, 2013 and Michael and Cynthia McLelland on March 30, 2013. During the interview, the defendant gave details of both offenses which had not been made public.
Kim has a privilege not to testify against Eric. She can waive it, though, and testify about what she saw and heard, including communications made to enable him to commit a crime.
Justice and Revenge, Rosenbaum Trolling
I heard Thane Rosenbaum on NPR yesterday, and was instantly struck by how juvenile this law professor's understanding of justice and human nature is. (Greenfield wrote last week about Rosenbaum's Chronicle of Higher Education piece.)
Rosenbaum's stated premise is that justice equals revenge: "A call for justice is always a cry for revenge." This is transparently false. There are many different notions of justice, and often when an injured person calls for justice he seeks restoration rather than retribution.
Rosenbaum asks, "Now, in cases where we have the worst of the worst, where there's no question of someone's guilt-heinous murders-why is it that we're so ambivalent about actually providing just desert?" One answer, obvious to anyone who has ever shook hands with the criminal justice system, with ethics, or with Philosophy 101, is that the result of our actions is not necessarily an accurate measure of what we deserve.
The Sandwich Theory
Quoth Papa Greenfield:
Shortly after an instructor first arrives at Cardozo's Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students' performance. It's been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn't do so well, be gentle and constructive. End up on a positive note.This is the new rule of teaching....
This is not the new rule of teaching; it is an old rule of management. I remember hearing it from my dad some thirty years ago: when you are giving a correction to someone you're supervising, sandwich the negative between positives.
It is a broadly accepted social convention. The question is, is it an obstacle or an aid to teaching?
Greenfield seems to think it's an obstacle:
The directions to say something positive first, offer "constructive" criticism (and I use [doubt] quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.
Mea Maxima Culpa
Last week I was in trial (my first bench trial in federal court; we came in second).
I was also excited to be scheduled to speak to Professor Ray Moses's "Opening and Closing" class at South Texas College of Law. I've spoken to the class the last couple of years, and it has always been stimulating and fun. I'd had it on my calendar for two months.
As Thursday evening approached, I was at the office figuring out what to talk about and how, when I received an email from Professor Moses: My students are sorry you missed the class last night. Have a nice life.
I screwed up. There's no excuse. I hope Professor Moses's students-who are assigned this blog as part of their required reading-will forgive me.
Yo Ho Yo Ho The Pirate's Life For Me
In a recent discussion amongst criminal-defense lawyers about the murder of the Kaufman County District Attorney, and whether we would represent the person charged with the murder (assuming that anyone ever is-my bet is that the murderers will never get caught, though a patsy may be), one of the brethren predicted that whoever took the case would have her phones tapped; her medical records searched; and whatever else the Texas Rangers could think of done to her, including drugs being planted in her car. His point was that a lawyer should not take this case because it might be the lawyer's last case.
I was dumbfounded. Still am. I don't think his predictions are remotely near the truth, but even if they are that should not be sufficient to scare a criminal-defense lawyer off a case.
You don't become a criminal-defense lawyer to be loved by society, or to please the government.
You do it expecting...no, perversely hoping to make powerful enemies.
The Relationship Card
There were probably criminal-defense lawyers before me who marketed themselves as never having been prosecutors-who made a virtue, in the minds of potential clients, of a lawyer never having put people in prison. It's marketing with the truth-helping the public understand that "former prosecutor" does not mean "good defense lawyer."
Recently a potential client and I talked about how the other lawyers he was considering were trying to sell themselves to him. They were bidding against each other, and then calling him out of the blue to cut their fees, reducing their fees below what I thought it would cost to do a half-decent investigation of the case. I pointed out to them that the beginning of the month, when bills are due, is a great time to shop for a criminal-defense lawyer because those who don't manage their affairs well will cut their fees to get the cash flow in. He felt turned off by their efforts to sell him, especially with the price cuts (which seemed desperate to him).
“I really thought you were the real deal…”
After reviewing your website, I really thought you were the real deal. I didn't ask for your opinion earlier Mark.[Link to article about rich guy's 1990s bankruptcy.]Maybe if my dad had managed his risk more intelligently, I wouldn't have to steal.I can't believe you refused to advise me. All I wanted to know is if you've seen or worked in any related cases and your opinion. Instead you said "You shouldn't be stealing".That's to bad. With risk I take I could have become a big-time client of yours which after speaking with you I am sure, you have none.The best of luck to you.
None of it is privileged-he's not seeking representation-but I chose not to publish the information that might identify this narcissistic jackass because his life is difficult enough already, what with his having to steal because his rich daddy went bankrupt when he was six, and my not helping him "manage his risk," and all.
Where do people get the idea that "the real deal" criminal-defense lawyer would advise crooks on how to get away with their crimes? Aside from being unethical and illegal, it'd be bad for business.
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