“If you still think you would never confess to a crime you didn’t commit, listen to this.” Georgia Criminal Law Blog has a summary of the show (Mar. 31)(via Cernovich). Only seven states require that the full course of a police interrogation be taped in order to better evaluate the credibility of a confession; with the cost of such recording technology dropping ever closer to zero, it’s hard to see the case against a full-taping policy.
Posts Tagged ‘federalism’
Coaching police experts
Lawrence Taylor at DUIblog (Mar. 17, via Cernovich) has got the goods on a coaching memo given by the San Diego Police Department to the technical experts they put on the stand to testify as to drivers’ blood-alcohol levels (emphasis in original memo):
You will always mix any tube with an anticoagulent [sic] 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.
As Taylor observes, the witnesses are instructed to testify under oath to an account calculated to help the prosecution prevail, “not as to what they actually did and what they know to be true in a specific case”.
For more on witness-coaching, see Sept. 10, 1999, Sept. 22-24, 2000, and, of course, our many entries on the famous Baron & Budd witness memo scandal.
Help wanted (Calif. shakedown practice)?
Three years ago California’s notorious Trevor Law Group was found to be mass-mailing demand letters to small businesses alleging violations of the state’s ultra-liberal s. 17200 unfair business practices act, then settling the complaints for cash. A major furor ensued, and the state bar and Attorney General Bill Lockyer made gestures toward reforming the law to prevent law firms from running “shakedown” practices. But did it work? Mike Cernovich notices that a law firm has placed an employment ad on Craigslist seeking “additional counsel” to handle an “expanding workload”. What kind of workload? Well, it’s “primarily in the practice of wage and hour law inclusive of class actions … almost all [of our] cases are settled and are rarely tried.”
That business about settling rather than trying “almost all cases” got Cernovich’s suspicions up, and then he “saw something that made my jaw drop:”
In assessing the nature of the work and return on time spent it is helpful to keep in mind that the burden of proof is always on the employer to establish that he has paid the correct wages. The law requires that the employer keep accurate and timely maintained records that show hours worked and amounts paid. Failure to maintain such records is almost always at the heart of the case ….
Furthermore the employer will be liable for our legal fees if he is unable to defense the case. These two elements [the inability to prove us wrong and threat of attorneys fees] provide our clients with extraordinary leverage to resolve the matter.
Cernovich reads this as amounting to: “we sue employers knowing that it’s unlikely they’ll be able to produce records that will prove us wrong. … In other words, let’s just sue someone, hope he can’t produce any employment records to contradict us, threaten him with attorneys fees, and then settle the case post haste.” Or is he being too suspicious? (Mar. 8). (Updated/corrected shortly after posting to fix a mistake on my part about who placed the Craigslist ad; also retitled next morning.)
More on Trevor Law Group here and here. More on wage and hour law: Mar. 10, Jan. 9 and links from there.
Jury selection, while you wait
The Lay-Skilling Enron criminal trial will be one of the highest-profile Houston trials in many years, but in the courtroom of U.S. District Judge Sim Lake the process of jury selection was over within a day. That should be a lesson to judges elsewhere — especially in state-court proceedings — who allow lawyers to turn voir dire into a manipulative process that can last weeks or even months. Tom Kirkendall and Norm Pattis comment.
P.S. The Wall Street Journal’s news side covers the issue today: Paul Davies and John Emshwiller, “Split Verdict on Selecting Juries Quickly”, Feb. 1 (sub only). Washington U. (St. Louis) law dean Kent Syverud says, “I think Enron ought to be a wake-up call to show everyone that it can be done”. Among those complaining of a too-short process is Christopher Seeger, the attorney for the plaintiff in the New Jersey Vioxx case recently won by Merck, who “said the case was lost in the jury selection. ‘If I had an opportunity to flesh out some of the biases I believe I would’ve been able to talk some of those people off the jury'”. P.P.S. The New Yorker has more about the jury questionnaires and consultants (Mimi Swartz, “Talk of the Town: Enron Multiple Choice”, Jan. 30).
Colleagues to Pattis: knock it off
As readers may recall (Dec. 9), Connecticut attorney Norm Pattis has lately written a series of powerful commentaries at Crime and Federalism suggesting that some of his fellow plaintiff’s attorneys are too often tempted to take on the causes of vengeful, deluded or disturbed complainants, especially during “the periodic lull in cases of merit”; he further argued that society’s interest calls for strong measures against the filing of meritless cases. It seems, however, that these commentaries have not sat well with many of his colleagues. On Dec. 20 Pattis described one wave of reaction:
The other day, a newspaper called to ask for permission to run an old item. I granted permission, and now my email box is replete with messages from new readers, in this instance members of the plaintiff’s bar, not at all happy that I wrote about my sense that not all cases have merit.
And three days later (Dec. 23) he has further thoughts in response to being verbally pummeled on a listserv of the Connecticut Trial Lawyers Association:
…All I am saying is that a significant percentage of plaintiffs bring deep-seated psychological injury to their cases that is not caused by a defendant’s misconduct, and these clients transfer all their anger and disappointment onto the first available target, whether it be defendant or lawyer. I suspect any lawyer practicing more than a couple of years can draw this distinction with ease.
Was I suggesting that defendants are somehow devoid of the same sociopathy? Not at all. I suspect many defendants are disturbed as well. But there is a crucial difference — the defendant did not choose to be in court….
I haven’t lost the will and zeal to fight, far from it. But I do get to choose not to become more than the blunt instrument of those clients whose cases lack merit, and whose psyches bring nothing but hatred and rage to a courtroom.
Federal mail fraud and RICO statutes
Prompted by the (ongoing) corruption trial of former Illinois governor George Ryan and co-defendant Larry Warner, University of Chicago lawprof Albert Alschuler has written a series of posts at the Chicago Law Faculty Blog using the trial “to illustrate the unfairness of the mail fraud and RICO statutes”. He notes that “prosecutors call the federal mail fraud statute ‘our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart’, with the closely related Racketeer Influenced and Corrupt Organizations Act (RICO) law second on the list of favorites.
In the Ryan case, the alleged misconduct to be brought out at trial “will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.” Are all those things illegal? Well, they might be, ever since Congress added a vaguely worded new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme ‘to deprive another of the intangible right to honest services.’” The interpretations of this language have been so broad that even an elected official’s violation of his announced personal policy on a matter, not otherwise illegal, may be construed to deprive constituents of honest services.
In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies. … Does every broken promise by a politician (“read my lips”) now constitute mail fraud?
The mail fraud statute, Alschuler argues in a third post, encourages “kitchen-sink” proceedings in which a vast assortment of dubious actions, not in fact closely related to each other, get treated as a single vast “scheme” for purposes of prosecution. Finally, a fourth post discusses RICO charges, which prosecutors can build up on a foundation of “predicate acts” that:
may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.
For our comments on the abuse of the RICO statute by the Clinton and Bush administrations in litigation against tobacco companies, see Sept. 23, 1999 and many other posts.
Don’t take that client!
Norm Pattis at Crime and Federalism (Nov. 21) describes a temptation felt by many trial lawyers during “the periodic lull in cases of merit”: taking on the cause of a vengeful, deluded or disturbed complainant:
You know the type. The injured, angry, pissed off, ornery cuss of a client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scorching of any Earth within one thousand miles of their rubbed raw hangnail.
Will such a client find a lawyer willing to take his case? Very possibly he might:
Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs’ lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?
Lawyers should turn down such clients, Pattis says, and society should add its own discouragement:
I am a plaintiff’s lawyer. I am a successful plaintiff’s lawyer. But, perhaps this is too much to assert — I am an honest plaintiff’s lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brought without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.
And he follows that thought up with several other policy recommendations: “Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress”, “Expand Rule 11 type sanctions on lawyers”, and “Make it easier for lawyers to withdraw when they discover that the client’s claims lack merit”. Even if you don’t usually follow the links in our posts, do it this time and read the whole thing. Update Jan. 8: Pattis responds to colleagues’ criticism.
Blawg Review #33
Welcome to Blawg Review #33, the latest installment of the weekly carnival assembling some of the best recent weblog posts about law.
If this is your first visit to Overlawyered, we’re among the oldest legal sites (launched in July 1999, practically the Eocene era), and over the years we’ve built a vast collection of information (with links/sources) on strange, excessive and costly legal cases, examples of the over-legalization of everyday life, pointers on litigation reform, policy stuff of generally libertarian leanings, and much more. We’re a fairly high-volume site; 6-8,000 unique visitors on a weekday is pretty typical. And although our work is regularly critical of trends in the legal profession — or maybe because of that fact — practicing lawyers around the world are among our most valued and loyal readers.
More specifically, there are two of us posting here. One of us (Walter Olson) has been writing about these topics for twenty years as the author of several books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) and a great many shorter articles. He’s a senior fellow at the Manhattan Institute who lives and works in Chappaqua, N.Y., north of New York City. More recently Ted Frank, who’s in Washington with the American Enterprise Institute, joined as a regular blogger. Unlike Walter, Ted is a lawyer, having practiced until lately with O’Melveny & Myers. Both of us also blog at the (somewhat more serious-toned) website Point Of Law, which unlike this one is sponsored by our respective institutes and boasts numerous other contributing writers.
Enough about us. Here’s Blawg Review #33, written by Walter with
indented sections by Ted.
* * *
The week in headlines
The talk of the blawg world last week? The New Yorker’s unmasking of the girlish “Article III Groupie” who’s blogged anonymously about federal judges at “Underneath Their Robes”, as, in fact, a (male) Assistant U.S. Attorney in Newark. Much more on that from Ted, below.
The pace of commentary on Samuel Alito Jr.’s Supreme Court nomination has slowed a good bit, despite the release of a 1985 memo detailing Alito’s views on abortion (which occasioned this post by Will Baude taking exception to a Dahlia Lithwick Slate column) and, more tantalizingly, on the Warren Court’s reapportionment cases (see posts by Nathan Newman and Steve Bainbridge). Alito is now heavily favored among bettors to win confirmation, notes San Diego lawprof Tom Smith.
Possibly the week’s strangest headline, discussed by J-Walk: “1,100 Lawyers Leave Saddam Defense Team”. 1,100?
And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).
* * *
Splendors and miseries of legal practice
Find out:
* What makes a talented 39 year old attorney burn out of a criminal defense practice? (Norm Pattis, Crime and Federalism)
* What sorts of squirm-inducing compliments do criminal defense lawyers hear from their clients after scoring legal points on their behalf? (Ken Lammers, CrimLaw)
* Is it smarter for big law firms to compensate their partners on an “eat what you kill” model, a “lockstep” model, or something between the two? (Bruce MacEwen, Adam Smith, Esq.)
* How do licensing professionals decide what’s a reasonable royalty rate? (Patent Baristas)
* What sorts of bad things can happen to a law firm when one of its individual lawyers behaves rudely to a stranger? (Jim Calloway)
* * *
Controversies galore
Read, ponder, and make up your own mind:
Did Texas execute an innocent man, Ruben Cantu? (Doug Berman)
Conservatives are still griping about the Ninth Circuit, but the new twist is that they think its judges aren’t activist enough. (Eugene Volokh)
Every so often, through luck or pluck, the “fair use” side manages to win one in copyright litigation (Ron Coleman, Likelihood of Confusion).
A group is “pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.” Atlanta attorney Jonathan B. Wilson calls it “one of the worst reform ideas ever”.
Michael Newdow, of Pledge of Allegiance suit fame, has filed a new legal action demanding that the motto “In God We Trust” be removed from U.S. currency. Jon Rowe winces.
Our own Ted Frank takes a look at the much-talked of “Dodgeball” document and concludes that it by no means proves Merck’s guilt in the Vioxx matter. (Point of Law). Also at Point of Law, James Copland of the Manhattan Institute and Dr. Bill Sage of Columbia have been engaged in a spirited debate on med-mal litigation.
In a Providence courtroom, the state of Rhode Island is demanding that companies that once manufactured lead paint be held liable for the cost of lead abatement programs. Speechwriter/ghostwriter Jane Genova is liveblogging the case’s retrial, and suggests that the defense side has been making its points more effectively.
A court has ordered the Armour Star meatpacking concern to pay $3 million for using a strength test to screen applicants for a job requiring much lifting. George Lenard’s Employment Blawg originally covered the case last month, Overlawyered picked it up, and now George has returned to the subject, observing that those dissatisfied with the suit’s outcome should realize that sex discrimination law’s distrust of strength tests isn’t something the EEOC just came up with the other day and in fact dates back at least a couple of decades. (I quite concur, having written at length on the subject back in the 1990s.)
The British government recently published a white paper entitled “The Future of Legal Services: Putting the Consumer First”. Dennis Kennedy at Between Lawyers provides a link.
In other consumer news, State Farm conceded earlier this year that when it disposed of many wrecked-and-repaired vehicles it failed to ensure that they were given appropriate “salvage titles”. E.L. Eversman at AutoMuse has been following the issue.
The head of the NY state bar association is advising prospective clients not to be swayed by lawyers’ advertising. David Giacalone, who frequently discusses legal advertising on his blog f/k/a, isn’t impressed.
San Diego lawprof Gail Heriot discovers a convicted rapist is living a few doors down from her, which gets her to thinking about the interaction of “Megan’s Law” statutes and statutory rape.
New York AG Eliot Spitzer has gone after former NYSE head Richard Grasso but not the board that approved Grasso’s plans. Larry Ribstein suspects the worst, charging that Spitzer “gets securities industry political support if he handles this so only Grasso gets hurt.”
* * *
Student division
Scheherezade at Stay of Execution, who wrote a classic post last year giving advice on whether or not to go to law school, now fields a reader’s question: Should I transfer to a higher-ranked law school?
Called for jury duty, Jeremy Blachman gets shown a somewhat hokey video entitled “Your Turn: Jury Service in New York State.” “I wanted to really mock the video, but in all honesty it was a better explanation of the jury system than anything we got in law school”.
Michael Froomkin offers a surprising and counterintuitive quiz on the U.S. Constitution in the form of a “scavenger hunt”. He also suspects that a national ID card might abet price discrimination.
And this from Ted:
Congratulations to Amber, G, Marissa, Grigori, Eve, Jeremy, and others who passed the bar. Third Attempt failed for the second time, and is opening a blog on the subject of his third try, with links to other passers and failers. Only 13% of those who repeated the California bar passed.
On the lighter side, law student Kurt Hunt quotes his prof’s maxim that “Cahoots is not a crime” but wonders what would happen if “tomfoolery, cahoots, no-gooding, antics and shenanigans were redefined as ‘Crime-Lite'”. And Colin Samuels of Infamy or Praise is among the many human beings who don’t manage to eat as well as (UCLA lawprof) Steve Bainbridge’s dog.
* * *
Buzz about blogs
Now I’ll turn the floor over to Ted again to discuss the UTR affair:
The blawgosphere likes nothing more than navel-gazing, and the New Yorker’s outing of anony-blawger “Article III Groupie” as Newark AUSA David Lat and resulting implosion of “her”/his popular “Underneath Their Robes” blawg has generated lots of curiosity and posts with Austin Powers references; the story even made Drudge and the New York Times. Blawg Review has a retrospective look at the blawg. Howard Bashman has done the most original reporting, interviewing Jeffrey Toobin, who revealed Lat’s identity, and publishing the reminiscences of a former co-worker of Lat’s. Denise Howell provides an obituary for the blawg. The Kitchen Cabinet’s “Lily” comments from the perspective of another anonymous blawger, as does Jeremy Blachman, who got a book deal from his anony-blogging. Ann Althouse muses on the nature of humor; Professor Solove and Howard Bashman comment on blogger anonymity, as does Half Sigma, who pulled a similar hoax using the photo of a Russian mail-order bride earlier this year as the image of “Libertarian Girl.” Another blawgger claiming to be a libertarian female, this one with the implausible name of “Amber,” meta-comments on the various shattered blog-crushes exhibited in the garment-rending Volokh Conspiracy reader comments on the subject; JD expresses his own disappointment. (Judge Kozinski claims to have known all along, but Judge Posner has proof of his foresight.) And Ian has sound commentary on A3G’s “status anxiety.” (And speaking of status anxiety, a Harvard Law School admissions dean snarks on Yale and gets snarked back. One can understand the sniping: HLS and YLS are good schools, and there’s a lot of competition for who’s #2 behind Chicago Law.)
Some fallout: anony-blogger “Opinionistas” got an e-mail accusing her of really being a man, and Will Baude and Heidi Bond make a bet over the gender of anony-law-prof Juan Non-Volokh, who promises to come out of the closet soon.
Taking second place in interblog buzz is the IP sticky wicket that awaited the former Pajamas Media (discussed by Blawg Review here) when shortly before launching it decided to switch to the more dignified monicker of Open Source Media. Turned out there was already a well-known public radio show by the name of Open Source which hadn’t been consulted even though it occupied such URLs as opensourcemedia.net. Ann Althouse has been merciless (here, here and here) in needling the OSM organizers, while Prof. Bainbridge piles on with a law and economics analysis of OSM’s market.
Monica Bay passes along the views of legal-tech consultant and frequent CLE presenter Ross Kodner, who charges that law blogs are “narrow-minded” and display “elitist exclusionism”. “I am sick and tired of being repeatedly asked why I don’t have a blog,” he declares. Okay, Mr. Kodner, we promise never to ask you that.
* * *
In conclusion
Finally, intellectual property lawyer Doug Sorocco, of the ReThink(IP) and phosita blogs, arrives “fashionably late to the BlawgThink ball” (in Chicago last week). Sorocco’s Oklahoma City firm also figures prominently (as the acquiring party) in what Dennis Kennedy says may amount to a milestone: “the first move of one legal blogger to the law firm of another legal blogger.” Stephen Nipper has more details about this “move” at ReThink(IP).
By coincidence, and giving us a nice way to wrap things up, phosita is going to be the home of next week’s Blawg Review #34. Blawg Review has information about that and other upcoming matters, as well as instructions how to get your blawg posts considered for upcoming issues.
P.S. As Bob Ambrogi notes, you can now check out — and tag your own location in — Blawg Review’s reader map feature.
“How Many Laws Did You Break This Week?”
In a paper published by the Golden, Colo.-based Independence Institute, Mike Krause and Chelsea Johnson examine the problem of overcriminalization in one state, Colorado. (Publication # IP-9-2005, Sept., PDF). More: via Mike Cernovich, here’s word of a symposium on overcriminalization in the American University Law Review with contributions from (all PDF): Ellen S. Podgor, John S. Baker, Jr., John Hasnas, Peter J. Henning, Erik Luna, Sara Sun Beale, Geraldine Szott Moohr, and Paul Rosenzweig.
Jay Sekulow
Major investigative piece by Tony Mauro for Legal Times on “the leading Supreme Court advocate of the Christian right,” alleging that Sekulow has feathered his nest very nicely through the use of his American Center for Law and Justice, which in 2003 raised $14.5 million for its high-profile legal advocacy. Among the specifics: payments to Sekulow that are very high by non-profit standards, along with perks such as the use of a private jet, chauffeur-driven cars and several houses; jobs for his family members on the payroll; and circuitous routings of both donations and expenditures that have the effect of sanitizing ACLJ’s financial statements. “A review of publicly available tax and court documents, as well as interviews with several former employees, paints a stark portrait of Sekulow as a hard-charging man who emerged from bankruptcy and allegations of securities fraud in the late 1980s to build a complex network of personal, business, and nonprofit entities. At times, those financial dealings have alienated employees and been criticized in court.” They have also produced a backlash among many associates who believe that Sekulow’s handling of his organizations’ finances, which draw heavily on support by small donors, does not well exemplify Christian teachings. Vital reading (“The Secrets of Jay Sekulow”, Legal Times, Nov. 1). More: Mike Cernovich, Jeremy Richey, Legal Reader, Mike Airhart. And: Jonathan Rowe, Ed Brayton, Rob Huddleston, Radley Balko, Greg Prince; and welcome Andrew Sullivan readers.