Coloring books, case law, and the Devil’s Dictionary

In my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield), I discussed how the police indoctrinate kids at a young age through “Deputy Friendly.”  The good deputy’s message is clear: the police are your friends and they’re here to help.  Conversely, I lamented, early education excludes anything that runs contrary to that pro-government theme.  If you doubt that, try to imagine anyone teaching young people about how the police are permitted to lie to us, how we have the right to tell them to “pound sand” when they want us to talk, and how we can demand the presence of an attorney to gum-up the government machinery.  (Hard to visualize such an education, isn’t it?)  But as successful as Deputy Friendly has been indoctrinating America’s youth, I think the judiciary has just topped him with the publication of Learning about Judges: A Coloring Book.

Changing Rule 1.9

There's been some progress on our petition to modify Wisconsin's SCR 1.9 (c), the rule that prevents attorneys from talking about even the public aspects of their closed cases.  In a nutshell, Terry Rose and I are trying to restore some sanity to the situation.  We are asking the supreme court to define "generally known" to include information that is publicly available or has been disclosed in a public forum, and further to recognize that, by definition, generally known information has already been "revealed."

The lawyer advertising double standard

Unemployed and under-employed law graduates have sued several law schools, claiming the schools used false or misleading employment data to induce them to enroll and spend $150,000-or-so of their yet-to-be-earned dollars.  One law school advertising tactic, for example, was to label jobless graduates as “not seeking” employment; this allowed a school to hide the abysmally high unemployment rate of its graduates.  Another, more common tactic was to count graduates as “employed” even when their jobs had absolutely nothing to do with law (e.g., working at Starbucks), or were only temporary jobs created by the law school to artificially boost its employment statistics.  Another was to say that, for example, 92 percent of all grads were employed, when in fact only 92 percent of the 40 percent who responded to the survey were employed.  In sum, law school advertising at many schools took tremendous liberties in spinning the facts.    

Citizenfour

In her Oscar-winning documentary Citizenfour, Laura Poitras exposes the extent and impact of our government’s domestic spying operations.  Her documentary focuses on Edward Snowden, and includes many of the things you’d expect to see in great filmmaking.  For example, there is the early congressional testimony of an NSA bureaucrat who repeatedly denied that the government intercepts our emails, phone calls, texts, and google searches.  But later, another NSA bureaucrat testified and tried to spin it: The NSA does not intercept such data “wittingly.”  It does so “inadvertently, perhaps,” but not “wittingly.”  (This type of statement makes the testimony of cigarette company executives — “I believe that nicotine is not addictive” — appear truthful by comparison.)

Race matters in eyewitness identifications

By now, most people have seen the video of former professional tennis player James Blake being roughed up by a New York cop in a case of mistaken identification.  (If you’re familiar with names like Agassi, Sampras, and Federer but haven’t heard of Blake, the guy was not a superstar but he was legit; he earned more than $1 million in prize money alone in 2008.)  And once this video surfaced, several worthwhile issues have been raised, including police brutality, police cover-ups, and disparate treatment of minorities.  But two topics have largely been glossed over.

Petition to modify Wisconsin SCR 20:1.9

Madison, WI

Most attorneys confuse ethics rule 1.9 with the evidence rule of attorney-client privilege. (Chalk this up to another colossal failure of legal education.) But ethics rule 1.9 is much broader, and essentially prevents an attorney from discussing, writing about, or otherwise disclosing even public information about his or her closed cases. Among other problems, this rule is a clear violation of an attorney’s free speech rights. In fact, the state of Virginia has already said as much, as its supreme court held that an ethics rule may not prevent an attorney from discussing the public aspects of his or her closed cases. And other states, such as Alaska, permit attorneys to discuss the public aspects of their closed cases for CLE purposes. So fellow attorney Terry Rose and I have filed a petition with the Wisconsin Supreme Court to modify ethics rule 1.9. The very modest modifications would permit an attorney to discuss, write about, or otherwise disclose public information about his or her closed cases. You can find our two-page petition at this link. You can find our fifteen-page supporting memorandum that blasts rule 1.9 at this link. Wisconsin attorneys who want to support our petition can do so by following the instructions at this link. Our petition and memorandum are based on my forthcoming article, On the Absurdity of Model Rule 1.9, which will be published in the Vermont Law Review in January 2016.

Seneca on judges (and a 2,000 year-old practice tip for defense lawyers)

I’ve written numerous times how judges often fail to grasp even the most basic legal principles — including, for example, the concept of hearsay.  (See here, here, and here for just a few of those posts.)  This is incredibly frustrating for defense lawyers who go to trial intending to put on evidence in defense of their clients.  But there’s good news.  A Stoic philosopher named Lucius Annaeus Seneca (4 bc – 65 ad) offers some advice for the criminal defense lawyer.  This advice will certainly help us keep our composure in court, and might even increase our odds of successfully educating the judge — though educating the prosecutor, who typically raises the inappropriate objection to our evidence in the first place, may be beyond hope.

“I think I’m dead, therefore I exist”

Some blogs get a lot of praise and even make a lot of money by simply linking to -- and, despite copyright laws, sometimes actually reprinting -- the writing of other blogs and websites.  The Legal Watchdog, on the other hand, consists nearly entirely of original work.  But every once in a while I come across a flurry of other articles, blog posts, and podcasts that I simply must share with The Dog’s readers.  Let’s begin out west, and the state of their state bars.  As the Irreverent Lawyer tells us, there is evidence that Cal Bar is a “bloated, arrogant, oblivious and unresponsive” bureaucracy.  (I’ve previously written about the Golden State here and here.)  So when the AZ Bar wanted to remake itself, where did it look for guidance?  You guessed it: Goin’ back to Cali.  Read the Irreverent One’s sharp, biting, entertaining, and comically illustrated post, “State auditor slams the Cal Bar . . .”

Swim with the Sharks

I don’t mind admitting that Shark Tank is flat-out addictive.  Essentially, five “sharks” — billionaires or multimillionaires looking to invest money — listen to pitches from entrepreneurs seeking capital for their businesses.  Sometimes the entrepreneurs’ ideas are so bad that the sharks will ridicule these people to the point of making them cry.  Other times, the business ideas have such profit potential that the sharks will fight each other for an ownership stake in the entrepreneur’s company.  Yes, I love Shark Tank, but probably not for the reason I’m supposed to. 

“I spent $134,918 and I don’t even get a lousy law degree?”

I hate it when lawyers mindlessly jabber about "public service" or "giving back" or our alleged duty to "serve the community," as if we have some moral obligation above that of medical doctors, corporate managers, accountants, or truck drivers.  As I’ve written here, this nonsensical blather often comes from highly paid bureaucrats at state bar associations who are trying to put a good face on the legal profession.  And as I’ve written here, other times it comes from judicial candidates who are vying for incredibly high paying judgeships, but need to offer up a more palatable reason for why they want the gig.  But now it’s graduation time, and the law school industrial complex is minting thousands of new JDs.  And along with the graduation ceremonies comes commencement speakers who spew out creative new twists on this worn out public service mantra.  The most creative twist this year goes to the Northeastern University commencement speaker who told the graduates that their degree doesn’t really belong to them; instead, it “belongs to our whole community.”

ABA and Wisconsin Bar combine efforts to solve lawyers’ problems (but not really)

Many new law grads are saddled with staggering debt loads and have limited job prospects.  While six-figure debt is now commonplace, just over half of new law grads have been able to land full-time, long-term employment as lawyers.  And, thanks to the bimodal salary distribution, most of those “lucky” new lawyers aren’t even paid enough to make a dent in their student loans.  On the other hand, for established, practicing lawyers, things aren’t much better: fees have been stagnant or even falling — not only in real dollars, but often in nominal dollars as well.  But don’t worry.  A grinning bureaucrat from the ABA teamed up with the Wisconsin Bar to discuss the “great opportunities facing lawyers today.”  That’s funny; I thought we “faced” obstacles but were “presented with” opportunities.  But I’m not writing this to nitpick word choice, so let’s get to the real question: what exactly are these “great opportunities”?

Advanced Interdisciplinary Studies: Community and the Law (Part 2)

I realize that law school deans need to “sell” their product and industry to a variety of groups, including would-be students.  But sometimes, dean-speak is so bizarre you have to wonder if the dean gave even minimal thought before spinning a particular yarn.  To continue with my new field of interdisciplinary study, Community and the Law, let’s begin with our baseline dean: Community’s Craig Pelton, Dean of the fictional Greendale Community College.  Dean Pelton recently bragged that his school is “now ranked fifth . . . on Colorado’s alphabetical listing of community colleges.”  That claim pretty much speaks for itself.  And unfortunately, some real-life law school deans appear to be using Dean Pelton as their role model.

Advanced Interdisciplinary Studies: Community and the Law (Part 1)

Despite its comic intentions, the television show Community — season 6 now available on Yahoo! Screen — has been surprisingly accurate in its portrayal of higher education and, more specifically, of law school.  For example, the show, set on the campus of Greendale Community College, did a great job of explaining the importance of law school: “Anyone can be a lawyer; you can even represent yourself.”  And through its character Jeff Winger, the show essentially proved that the J.D. degree is really nothing more than a dressed-up associate’s degree.  But in season 6, Community is becoming eerily prescient, and it’s getting harder and harder to differentiate the fictional Greendale Community College from real-life law schools. 

California Bar outdoes Wisconsin Bar with mandatory pro bono requirement

The Wisconsin Bar recently conducted a dues-funded study demonstrating the obvious: (1) many new lawyers were drowning in debt and couldn’t find law-related jobs; and (2) many of these new lawyers were afraid to hang their own shingle because they were never trained to practice law and feared committing malpractice.  I then mocked the Wisconsin Bar when, shortly after its study, it sent out an unrelated email suggesting that new lawyers reduce their anxieties by doing unpaid legal work for real clients.  But as clueless as the Wisconsin Bar was, the California Bar may have just topped it.

State Bar Bureaucracy: An Obvious Conflict of Interest?

Throughout my legal career — including at Quarles & Brady, as a solo practitioner, and especially as a writer — I’ve pondered a wide variety of “conflict of interest” scenarios.  And while attorneys are conditioned to run scared from any situation that could conceivably be construed as a conflict, there is one huge conflict of interest sitting right under our noses.

The mandatory, integrated state bar is such an obvious conflict that it needs little explanation.  In a nutshell, the bar forces attorneys to become members, takes their dues money, and then actively works for “the public” and against its membership.  Some state bar associations still pretend to serve their membership, when actually they are nothing more than Great Public Protection Perpetual Motion Machines: “The [attorney] members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.”  But as the Irreverent Lawyer informs us, some state bars might do away with this pretense altogether.  The State Bar of Arizona, for example, proposes clarifying the issue as follows: You, attorney, must join our ranks and pay your annual dues, and we will serve you only if it doesn’t conflict with our “mission . . . primarily to protect and to serve the public[.]”

On the absurdity of law schools and law reviews

I’ve written several times about the low hours and great pay enjoyed by law professors (many of whom can’t appreciate their situation because they’ve never experienced the intense stress, crazy hours, and low pay enjoyed by most lawyers).  Add on the usual law prof benefits (e.g., health insurance, sabbaticals, summers off, research stipends, etc.) and its no wonder that “law professor” has appeared near the top of several “best-jobs” lists.  And I’ve also written about how some profs launched themselves into the financial stratosphere with creative benefits called “forgivable loans.”  But there’s yet another benefit that, although I had never heard of it, turns out to be relatively common for those in the academy: spousal hiring.

Legal news from around the world wide web

The legal profession is rife with nonsense, and I can't possibly write about all of it.  So here are some great posts from around the www to keep The Dog's readers up to date.

First, prosecutor misconduct.  For me, outside of not-guilty verdicts, some of the sweetest moments in law practice came when prosecutors hid evidence, but then accidentally disclosed it anyway.  (One example is the smoking-gun memo that gets mistakenly placed in my discovery packet.)  But prosecutor misconduct is a serious problem, and we can't always count on their ineptitude to serve as a self-correcting mechanism.  For a great post on prosecutor misconduct (with courtroom video at the bottom), check out The Irreverent Lawyer.

Second, law school shenanigans.  Sure, law profs make a lot of money for a short work year and a 3-4 class per year workload.  That's no longer shocking.  For shocking, visit Outside the Law School Scam to learn how an unkempt dude who went straight from law school to a professorship, and then to a deanship, collected hundreds upon hundreds of thousands of dollars in salary and other creative payments like "forgivable loans," and then still kept his professor job (though not the deanship) when it all came unglued.  

And third, law review publishing.  I once wrote a law review article with about 100 footnotes.  Then the editors sent it back and wanted 200 footnotes, including footnotes for sentences so basic they required no citation.  For example, if I write that "sometimes defendants will defend battery cases claiming self-defense," I don't need a footnote because the claim is obvious and undisputed.  After much battling of our own, we ended up settling on about 150 footnotes.  For more on the intricacies of law review publishing, including how the journals select their articles -- finally, an explanation for why the Harvard L. Rev. has thus far refused to publish my work -- visit Class Bias in Higher Education.  

Enjoy! 

Knock-knock game replaces warrant requirement

I don’t know how, logistically, this would work, but someone needs to put the Fourth Amendment out of its misery.  Actually, it’s too late for that.  It is already dead.  We just need to bury it and quit talking about it as if it still exists. 

I’ve been down this road before, but let’s briefly recap.  Assume the police believe that you smoked pot in your home, or possessed a medication that wasn’t prescribed to you, or visited an illegal website from your computer, or owned an adult pornographic video to which a child was exposed, etc.  Further assume the police claim their belief is based on “probable cause” (e.g., an accusation by your neighbor that he smelled pot smoke coming from your apartment, an accusation by your kid’s friend that he saw “naked people” on your TV when he slept over, etc.). 

Another gem from the state bar

The state bar has been serving up a lot of softballs.  Its most recent came in the form of an email, asking me to donate thirty minutes of my time for its latest dues-funded project: a survey on how to improve law schools.  “This survey,” the bar promises me, will “undoubtedly advance the profession.”  That’s a bold claim, and one that I seriously doubt.  But I might have participated were it not for an even bolder claim: the bar tells me to donate my time because “educating tomorrow’s lawyers is a shared responsibility.”

I’m pretty sure that’s not true.  Instead, I’m pretty sure that law professors are responsible for “educating tomorrow’s lawyers.”  Let’s take a look at some numbers to support my novel claim: 

Expunction junction, what’s your function?

There were two Wisconsin cases this past year – Hemp I and Hemp II – on expunction of criminal records for young people convicted of relatively minor crimes.  Aside from the substance of those cases, Hemp II may have put to bed a debate that my colleague Terry Rose and I were having against the director of state courts back in 2010.  In a nutshell, the director put out a pamphlet stating that, even after expunction, “If you are asked if you have ever been convicted of a crime, such as on a job application, you must answer ‘Yes.’ ”  We disagreed.