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Recent Blog Posts
My Jury Selection Lecture (Video Fixed)
This is my talk on jury selection-the law, the science, and the practice-from the State Bar of Texas Advanced Criminal Law Course in San Antonio in July 2012.
[jwplayer mediaid="4545″]
My accompanying paper on Texas's law of jury selection is here.
My paper on simple rules for better jury selection is here.
“Legal Brand Marketing” Ethics Fail II
Blake Knight at Legal Brand Marketing is still at it: sending strangers emails revealing the secrets of people who think they're contacting a lawyer:
State = TX County = TARRANT City = Date Arrested = First Name = Brendan Comments = I was in a drunk driving incident in which I was travelling the wrong way on a one way street and had a collision with another vehicle. I was rushed to the emergency room and had a one week stay in the hospital. I do not have any copies of my tickets or court summons so I have not yet been to court. The ticket states that the offense was a DUI 49.04. It also states that the victims were injured as well. The state of their injuries is unknown to me at this time. Can these charges be bumped up to Intoxication Assault? Unknowingly to me, I refused the breathalyzer on the scene, will this bump my charges up? What am I facing right now since I have missed my court date? ?»?
Sure, Blake stopped sending the pigeons' last names after I published this post, putting a Hello Kitty bandaid on the gangrenous ethical wound that is Legal Brand Marketing. You don't think Richard Alpert can figure out who Brendan is? You don't think he'll find some way to use this message ("in fact, you were so intoxicated that you don't even remember refusing the breathalyzer?") against Brendan? You're mistaken.
Conditioning Proceeds as Planned
Caught on video (via Lisa Simeone, TSA News): TSA goons training travelers to be unquestioningly compliant.
You Keep Using That Word…
Mark Bennett,I work for 17 different attorneys throughoutThe United States, and I have a simple propositionthat will benefit your website and ours.One of my attorney clients would like toPlace a link from his website to your website,Which will elevate you in Google's eyes and helpYou get higher up in Google results.In return, we ask for a link from your website toA different attorney client of ours.No money exchanges hands, the links are notReciprocal, and both parties benefit.This is NOT a ‘black hat' technique, or anythingThat violates Googles' terms of service.100% straight up, legitimate, tit for tat.Are you open to this simple arrangement?Please reply regardless,Andrew Hudson
I do not think "reciprocal" means what you think it means.
(Google says that "Excessive reciprocal links" can negatively affect your site's ranking in search results.)
When Your Only Tool is a Hammer…
"It is not true that if you devote most of your attention to marketing, [lawyering and administration] will suffer. It will simply mean that you need to hire or outsource."
This little gem of wisdom comes from a comment on this post at Lawyerist.com. The comment's author is Mark Merenda, who is-you guessed it-in the business of selling marketing to lawyers.
Is Merenda's position-that "Marketing is job one. No clients, no law practice. If the new solo is good at marketing all other problems are eminently solvable"-transparently ridiculous? I don't know; it should be. But in case it's not, let's try concretizing the abstraction a bit and see what we get.
Fred is a new lawyer who went to law school because he wanted to practice law. In his third year he made a halfhearted effort to apply for jobs and got nowhere. He's okay with that-he'd just as soon work for himself, if he can, but he's a little scared. So when he gets admitted to practice, Fred forms "Lawyer Fred PC." The phone doesn't ring for a couple of weeks, so Fred gives some money to SPU ("Solo Practice University," where people who don't know how learn from people who can't), where Merenda tells him, "marketing is job one."
I Was Half Right About Dionne Press's Assisted-Suicide Case
On 18 September the aiding suicide case that Dionne Press neglected and that I offered to work on for free (which caused Press to try to get the DA's Office to file charges or a grievance against me) was no-billed by the grand jury of the 351st District Court.
So I was right in predicting that result (to be honest, the outcome was a no-brainer, which is why Press should have filed a writ of habeas corpus ten weeks ago), but wrong about the timeline. Press's client didn't spend almost sixty days in Harris County Jail charged with a fine-only offense; he spent eighty days in Harris County Jail charged with a fine-only offense.
What a waste.
Press's marketing says:
I take every Criminal charge seriously. I will work hard in your defense to protect your rights and freedom.... * * * * *I will provide you with individualized attention, professional expertise and aggressive representation.I will use my years of experience and dedication to fight for your rights and aggressively defend your case.
“Legal Brand Marketing” Ethics FAIL
When she filled out a form on a website looking for a lawyer to defend her in a DWI case, do you think it occurred to Ms. Dilworth that the boneheads she was sending her information to would be forwarding it to a bunch of strangers, none of whom were bound by attorney-client privilege?
I kid. Of course it didn't occur to her (here's the sort of form she filled out; it promises her "contact with multiple local DUI attorneys").
Nor did it occur to her that "my alcohol level was three times the legal limit" is the sort of statement that a prosecutor, if he found it, would gleefully use in cross-examining her.
The problem with outsourcing your marketing to yahoos like Blake Knight, with their cavalier attitude toward things that should not have been revealed except under the protection of privilege ("Notes about your DUI"? STFU), should be self-evident. But this outfit has several otherwise-reputable DWI lawyers shilling for it.
AG Abbott Nonresponsive
Donald Collins, now twenty-seven, is accused of burning Robbie Middleton when Collins was thirteen and Middleton was eight. Middleton died last year of a cancer that "only comes from enduring multiple, painful skin grafts for serious burns." Montgomery County, Texas is considering charging Collins as an adult, but in 1998 a juvenile had to be at least fourteen years old to be certified as an adult.
It looks to me like Montgomery County Attorney David K. Walker thinks that prosecuting the defendant would violate the ex post facto clause, but lacks the backbone to just dump the case. So he asks Attorney General Greg Abbott for political cover.
From the AG's opinion letter:
Dear Mr. Walker:You seek our opinion regarding a defendant's possible claim that a prosecution for murder would violate the ex post facto clauses of the United States and Texas Constitutions. Your letter to this office also asks whether the Montgomery County District Attorney's Office is authorized to undertake such a prosecution. Request Letter at 1.* * * * *Although you argue that there is no case "directly on point" addressing this issue "from either the Fifth Circuit or the Supreme Court of the United States," you state that decisions by appellate courts in other jurisdictions–whose opinions are not binding in Texas–seem to counsel against the prosecution at issue in your request. (4) Your brief indicates that all of the cited cases "seem to dictate the same conclusion: that the current language of [section] 54.02(j)(2)(A) cannot be applied to conduct occurring prior to January 1, 1999, because such application would subject the respondent to a greater punishment than was previously available." Id. at 5. Nevertheless, you conclude that, "[b]ecause Texas courts would not be bound by any of the cases discussed above," both your office and the District Attorney's Office agree that the case at issue should be transferred to the district court for felony prosecution. Id. at 1, 6. You ask whether "an adult prosecution for the offense of murder [would] be authorized under current law if the deadly conduct occurred when the perpetrator was a juvenile in 1998, but the death of the victim did not occur until 2011, at which time the perpetrator was an adult." Request Letter at 1.
Eggs Win Trials
Jordan Rushie asks (rhetorically), Should I run my law firm on Apple? (a stupid post Greenfield and Tannebaum will laugh at), and compares this question to another:
It's like asking if you prefer to eat eggs for breakfast or cereal. It's a preference. It won't win the trial or make you lots of money anymore than your Fruit Loops will.
Rushie overstates the importance of the question of Apple-vs-PC question and understates the importance of that of eggs-vs-cereal. Much more than your choice of operating system, the right breakfast food will improve your chances of winning every trial.
The right choice? Eggs.
If your body is running on carbohydrates-if you get your energy from Froot Loops®-you have to keep replenishing your carbs or suffer physical and cognitive deficits ("low blood sugar"). In trial, are you going to be able to depend on having a cracker break in the morning?
Judge the Judge
Just the facts:
On the 29th of August I got in the mail the State's Motion to Disclose Experts in a case set for trial next Tuesday.
The same day the District Clerk's office notified me that the judge had granted the State's motion.
Here's a portion of Texas Disciplinary Rule of Professional Conduct 3.05:
A lawyer shall not...except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter.
Here's Texas Code of Judicial Conduct Canon 3(B)(8):
A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.
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