Thursday, December 31, 2015

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

Ambrose Bierce
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.

Tuesday, December 8, 2015

When Ethics Rules Attack: A Real-Life Example

I recently published an article criticizing ethics rule 1.9(c), and also filed a petition and memorandum (coauthored with Terry Rose) asking our state supreme court to change the rule.  The rule, which prevents attorneys from discussing even public aspects of their closed cases, not only violates our right of free political speech, but is an absolute disaster on every imaginable level.  I wrote in the article that the rule is nonsensical and indecipherable, leaving us lawyers at the mercy and whims of anti-lawyer bar associations and regulators. 

Thursday, December 3, 2015

Changing Rule 1.9

Current state of attorney free speech
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."

Friday, November 6, 2015

Hiatus

Sorry for the lull in the posts.  I've got about ten good topics lined up in the writing queue, but they're all going to have to wait.  Even though Knightly is currently resting up, I've been working on a new project with coauthor Larry White.  More specifically, many Wisconsin criminal defense lawyers have lamented that our state's burden of proof instruction allows conviction with far less than proof beyond a reasonable doubt. (I've always thought that the prosecutor's burden in our state was more like a preponderance of the evidence standard.)  So our new study and soon-to-be law review article tested that hypothesis.  And sure enough, mock jurors that were given the Wisconsin jury instruction convicted at a much higher, statistically significant rate than did mock jurors given a straight reasonable doubt instruction.  We plan to start submitting the article for publication to journals in February, and, historically, I've received offers on my articles by mid-March if not sooner.  Hopefully at that time the publishing journal will let us post a pre-publication version of the article to SSRN.  This should give defense lawyers some ammunition when filing pretrial motions to modify Wisconsin's burden of proof instruction.  Ultimately, the article should convince our jury instruction committee to modify Wisconsin's instruction to the constitutionally guaranteed beyond-a-reasonable-doubt standard.  Stay tuned!  

Monday, October 12, 2015

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.    

Sunday, October 4, 2015

Free speech today [Updated]

Many people — especially people at colleges and universities — have come to believe they have a right not to be offended.  The only explanation for this oversensitivity is the complete misunderstanding of the First Amendment.  (Click here for a First Amendment primer.)  This is particularly obvious when someone claims that another person’s speech isn’t free speech, but offensive speech.  Of course, the First Amendment protects offensive speech.  And, as a practical matter, if the speech weren’t offensive, it probably wouldn’t need constitutional protection in the first place.  The most recent incident of this came when a college newspaper published an op-ed questioning whether the tactics of a particular political movement were really effective.  What followed after the publication of the “controversial” essay was predictable: offense was taken; outrage was expressed; punishment was demanded; apologies were issued; and, likely, the college newspaper has learned not to publish any articles that express a contrarian viewpoint or question today’s politically correct stances.  But how did we become such a bunch of spineless, mealy-mouthed worms who insist that free speech has to take a backseat to our imagined right not to be offended?  Ken White at Popehat explains how this happened in his post titled “Safe Spaces” and the Mote in America’s Eye.  The post is also filled with links to numerous other posts, essays, and related works — a must read for anyone interested in the current state of free speech.  In sum, there is a real risk that the First Amendment, at least in some settings, will soon go the way of the Fourth Amendment — so enjoy this constitutional right while it lasts.  [UPDATE: Richard Dawkins on free speech on campuses, here.]

Monday, September 28, 2015

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.)

Tuesday, September 15, 2015

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.

Wednesday, September 9, 2015

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 linkWisconsin 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.

Saturday, September 5, 2015

Reversing the lawyer glut?

As the graph to the left indicates, law school applicants are at their long-time low, and are down 47 percent from their recent peak.  (The graph and a full report come courtesy of Paul Campos.)  This decline is due in large part to scam-blogs and even some mainstream media outlets that have exposed the staggering debt loads and limited job opportunities for new law grads.  This decline in applications is also great news for practicing lawyers, although it will likely take awhile for the existing oversupply of lawyers to start to correct itself.  Meanwhile, law profs are weighing in with their usual nonsense. 

Monday, August 24, 2015

How stupid is “the market”?

Few things are as annoying as a business analyst talking about the stock market like it’s a human being.  “The market reacted to this,” or “the market doesn’t like that.”  In reality, such statements are just after-the-fact attempts to make sense of irrational price movements.  But let’s play along.  Let’s assume that the stock market’s movements do have rational explanations.  And today, after a week of price declines totaling about ten percent of market value, almost all of the talking heads agree: the cause is the ongoing collapse of China’s economy, which hurts even U.S. stocks in our “interconnected world.”  Okay, good enough.  But this explanation, in turn, leads to another question: How stupid is the market?

Sunday, August 16, 2015

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.

Thursday, August 6, 2015

Tom Brady, Deflate-Gate, and the Criminal Justice System

Photo by Jeffrey Beall
One of my favorite bloggers, Paul Campos, recently studied the transcript of deflate-gate and concluded that “The NFL’s case against Brady is a joke.”  I don’t doubt his claim for a minute; in fact, it’s what I suspected from the get-go.  (Who the hell would want to play with an under-inflated football anyway?  Not Tom Brady.  See p. 50 of the transcript.)  But that’s not the point of this post.  Rather, my point is that Campos’s observations about due process in the Brady case are also relevant to defendants charged with crimes.  For example:

Saturday, August 1, 2015

“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 . . .

Saturday, July 11, 2015

Podcast: Episode 12: Three Rules for Educating Tomorrow’s Lawyers

Welcome to our twelfth episode of The Legal Watchdog podcast.

Today we discuss legal education reform and, more specifically, my recently published essay Three Rules for Educating Tomorrow’s Lawyers.  These rules are so simple that even law professors could implement them!  First, professors should teach a real body of law, instead of the useless mishmash of cases found in the typical casebook.  Second, professors should teach all of the topics within a given subject area, rather than just the topics they find interesting.  And third, professors should publish law review articles that are useful to lawyers and judges.  Matt, of course, disagrees with many of my ideas; surprisingly, though, so does Amy.  (Knightly would have agreed with me, but he was off on a wine tasting tour of northern Wisconsin.)  

Here are additional links to some of the things we referenced in the podcast:

My other law review articles are available here.

The law review article (not mine) simply titled Fuck can be found here.  (Hat tip to my favorite law blog, the Irreverent Lawyer, for alerting me to that one.)

A discussion of the Texas law profs raking in huge salaries, bonuses, and even “forgivable loans” can be found here.

We also mentioned the scam blog movement — a group of blogs that exposed, well, the law school scam.  This movement is probably chiefly responsible for the huge decline in law school enrollment.  (The practicing lawyers of the country thank you, scam bloggers!)  Some of my favorite scam blogs include OTLSS, LSTCITLSS, 3TR, JDD, LSTB, and ATL.

To meet your podcast hosts, click here

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Tuesday, June 30, 2015

Would-be lawyers, beware!

About forty percent of all lawyers are solo practitioners.  Another large percentage of all lawyers find themselves in very small partnerships, e.g., two or three lawyers, which is essentially the same thing as being a solo practitioner.  So if you go to law school, the odds are great that this is where you’ll end up.  Therefore, before you take the plunge and spend all that money on tuition, and yet another three years sitting in a classroom, you should take a look at what kind of money you can expect to earn.  Now, I’ve written several times about the incredibly embarrassingly low pay for solo lawyers, including here and here.  But, as the law professors like to say, that was just “anecdotal.”  So here’s some better salary data. 

Monday, June 29, 2015

Fixing Law Schools

Any reader of The Legal Watchdog -- or of ATL, LGM, OTLSS, LSTC, or 3TR, among others -- knows that law schools are desperately in need of reform.  But the problem is that most ideas for reform are pie-in-the-sky.  Why?  Because law schools are typically run by deans and professors and even clinical instructors who have never (or barely) practiced law, thus making serious reform a practical impossibility.  But reform, to some extent, can still happen.  And that's what I've written about in my latest essay, Three Rules for Educating Tomorrow's Lawyers.  Stay tuned for an upcoming podcast episode on the same topic; in the meantime, enjoy the essay!  And for those short on time, read the abstract after the jump:

Saturday, June 27, 2015

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. 

Saturday, June 20, 2015

Podcast: Episode 11: The Sixth Amendment Right to Counsel

Welcome to episode eleven of The Legal Watchdog Podcast.

In this episode we discuss the Sixth Amendment right to counsel and the case of State v. Delebreau.  Essentially, this constitutional right has been wiped from Wisconsin's history and has been merged with the Fifth Amendment right to counsel.  We discuss this unfortunate development, as well as how difficult it is to actually invoke your right to silence or your right to counsel under the Fifth Amendment.  (For more on that see pp. 922 - 925 of this article.)

Amy and Matt also do intense battle over an innocent Game of Thrones disclosure.  Don't worry, there are no actual spoilers involved, so fans of that show -- I actually thought it was a video game -- can still listen freely.  

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Rational") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:

Friday, June 5, 2015

Podcast: Episode 10: The Preliminary Hearing: To Waive or Not to Waive?

Welcome to our tenth episode of The Legal Watchdog podcast.

In today's podcast we discuss the preliminary hearing in criminal cases in Wisconsin.  While the decision whether to waive or have the preliminary hearing rests with the defendant, we discuss the thought process that goes into the defense lawyer's recommendations on this point.  We also consider the limited benefits of having the hearing, as well as two serious but often overlooked risks of having the hearing.  The case that gave us the idea for this episode is State v. Hull, where the state was allowed to use hearsay at the defendant's prelim, and the defendant was prevented from calling a witness in his own defense.  During the podcast we also discuss the problematic case of State v. Stuart.

Toward the end of the episode when Matt gets out of line, as is his custom, Amy is forced once again to threaten both the stun belt and the restraint chair.

To meet your podcast hosts, click here

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Wednesday, May 27, 2015

“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.”

Friday, May 15, 2015

Podcast: Episode 9: "I didn't do it, but I know who did"

Welcome to episode nine of The Legal Watchdog Podcast.

So you're charged with a crime and you didn't do it, but you know who did -- and you can't wait to tell the jury about it.  Not so fast.  In this podcast, we discuss State v. General Grant Wilson, where the court shut down the defendant's "wrong person defense," a/k/a "third party defense."  We discuss how difficult it is for a defendant to introduce evidence that another party committed the crime -- after all, police and prosecutors always get the right guy -- and in the second half of the podcast we discuss my article, An Alternative to the Wrong-Person Defense.  

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Rational") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:

Friday, May 8, 2015

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”?

Saturday, May 2, 2015

Podcast: Episode 8: Reversed and Remanded?

In today's podcast we discuss two cases, State v. Harrison, Jr., and State v. Coleman.  In both cases, a child accused the defendant of sexual assault.  In both cases, there was no physical evidence.  In both cases, there were no eyewitnesses.  In both cases, the child couldn't keep the story straight.  In both cases, the defense lawyer didn't thoroughly cross-examine the child-accuser.  And in both cases, the jury convicted the defendant.

But that's where the similarities end.  In Harrison, the District III Court of Appeals simply dispensed with the defendant's appeal via a conclusory, four-page decision that barely discussed any of the facts or cited any law.  It's probably the thinnest appellate court decision in the history of appellate court decisions.  But in Coleman, the District I Court of Appeals issued a detailed and thorough twenty-page majority decision that reversed the conviction and remanded the case for a new trial.  We try to figure out why these two defendants got such dramatically different treatment from the courts.

Also, there's some new stuff in the podcast.  First, we have new intermission music, again courtesy of David Pizarro (see below).  And second, in her ongoing effort to keep Matt in line, Amy abandons the traditional "stun belt" and instead implements the use of a "restraint chair."  Listen to the podcast to see if it works.

To meet your podcast hosts, click here

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Redd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Sunday, April 26, 2015

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.

Tuesday, April 21, 2015

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. 

Sunday, April 12, 2015

Podcast: Episode 7: Trial potpourri, flipping the bird, and Dick Cheney

Welcome to episode seven of The Legal Watchdog Podcast.

In today's podcast we discuss a number of trial related issues, ranging from the composition of the jury to your right to have your attorney in the court room during trial. (Spoiler alert: your attorney doesn't always have to be awake, or even present in court, during trial.)  The main cases for our discussion are State v. Robinson and Woods v. Donald.

Our apologies to the southern judiciary.  One of our topics in this podcast was the Batson challenge during jury selection.  And we went off on a tangent to discuss the case of Walker v. Girdich, where the trial judge held that the prosecutor's striking a juror because he was "a black man" was a race-neutral, and therefore acceptable, reason. And our first guess was that this was a case from the southern judiciary, but it was not.  It was a case from the allegedly politically liberal New York judiciary.  (As I've written before, there is no relationship between political affiliation and the respect for individual rights, and this is yet another example.)  In any case, kudos to the Second Circuit -- which covers Connecticut, New York, and Vermont -- for the reversal. 

Our apologies also go out to Dick Cheney.  You were a vice president -- and an especially influential one at that -- so I should have known that your first name was Dick, not Don.  (Though I did accurately peg you as an avid, but not necessarily an accurate, hunter.)  And this leads to my final apology: the former Temple basketball coach was John Chaney, not Don Chaney.  I have no knowledge of whether John Chaney liked to hunt and, if he did, whether he was a more accurate shot than Dick Cheney.

To meet your podcast hosts, click here

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Friday, March 27, 2015

Podcast: Episode 6: The Alibi Defense

Welcome to episode six of The Legal Watchdog Podcast.

In the first part of the podcast we briefly discuss State v. Hackel, a case about jury selection gone wrong.  In the second part, we dive into State v. Copeland, a case about the alibi defense.  What exactly is an alibi defense?  Who decides whether to use it, the defendant or the defense lawyer?  And can the defense lawyer withdraw the defense when he has reason to believe the entire thing will blow up in the defendant's face?

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Rational") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:

Wednesday, March 25, 2015

Monday, March 16, 2015

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.

Saturday, March 14, 2015

Podcast: Episode 5: The Right to Testify

Welcome to episode five of The Legal Watchdog Podcast.

In today's podcast we discuss a criminal defendant's right to testify at his own trial.  Surprisingly -- or, for regular listeners and readers of The Dog, perhaps not so surprisingly -- this right is as easily violated as many of our other constitutional rights.  

We spend the entire podcast discussing a single case: State v. Anthony.  (However, near the end of the podcast, Matt does recite some very impressive and important language from another case, Wright v. Estelle.)

To meet your podcast hosts, click here.

This podcast is not legal advice.  Please read our full disclaimer on the right-hand side of the blog, or on the "About the Podcast" page, above.    

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Saturday, February 28, 2015

State Bar and Public Defender Bureaucracies: Obvious Conflicts 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 are two huge conflicts of interest sitting right under our noses.  First, let’s begin with state bar associations.

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[.]”  (For all of the Irreverent Lawyer’s posts on “your friendly state bar,” click here.)

Friday, February 20, 2015

Podcast: Episode 4: Liar Liar

Welcome to episode four of The Legal Watchdog Podcast.

In part one we discuss the case of State v. Charles C.S., Jr., where the appellate court lowers the boom on a cop who gave false testimony and the prosecutor who let it happen.  For the first (and possibly last) time ever, Cicchini has some sympathy for the prosecutor.  Perz and Kushner, on the other hand, remind him of the prosecutor's "minister of justice" role and are quite pleased with the force of the court's scolding.

In part two we once again discuss free speech and the Madison, Wisconsin "sing-along" protests -- this time State v. Gruber.  Unlike State v. Crute, though, the government charged Gruber with disorderly conduct -- something we wondered about in our earlier sing-along podcast debate.

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Rational") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:


Thursday, February 12, 2015

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.

Monday, February 9, 2015

A new feature on The Dog

Check out the right side of the blog under "Labels," and now you can find blog posts organized by topic!  (The labels list doesn't include all topics; for example, the odd posts on college sports or science are not included, but you can still find those by scrolling through the blog or by searching on Google.)  Just click on the topic of interest, e.g., "Legal education," and all of those posts will appear.  This organization scheme isn't perfect, but it's a nice way to narrow down the old posts to try and find what you're looking for.  And if you want all of the podcast episodes, you can click the "Podcast" label, or just click the picture of the microphone, right about the list of labels.

Friday, February 6, 2015

Podcast: Episode 3: The sing-along

Welcome to episode three of The Legal Watchdog Podcast.

In part one we discuss a criminal defendant's right to file a substitution against the judge assigned to his case -- and the trial judge that wouldn't let him do it.  The case is State v. Harrison.  We had no choice but to analogize to Buffy the Vampire Slayer's Doppelgangland episode, though I think Matt might have been a bit lost in that part of the discussion.

In part two we discuss free speech and the Madison, Wisconsin "sing-along" protests.  (On this topic, Matt redeems himself.)  Learn how "The Man" tried to silence the citizenry, and why it didn't work, in State v. Crute.  (And for anyone interested in free speech issues on our college campuses, check out the Foundation for Individual Rights in Education.  Spoiler alert: academic bureaucracies don't like free speech and will go to great lengths to silence students and professors.)

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:

Tuesday, February 3, 2015

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! 

Monday, February 2, 2015

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 a 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.). 

Sunday, January 18, 2015

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: 

Thursday, January 15, 2015

Podcast: Episode 2: Your home is your castle (unless you rent)

Welcome to episode two of The Legal Watchdog Podcast!

In part one of the podcast we discuss the fourth amendment and your right to privacy in your own home and its attached garage.  Spoiler alert: if you live in an apartment or condo, the news is not good!  If you want to read the case before listening to the podcast, you can find it here: State v. Dumstrey.

In part two of the podcast we discuss the community caretaker exception to the fourth amendment.  If you want to read that case, you can find it here: State v. Matalonis.

To meet your podcast hosts, click here.

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music, you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

This podcast is not legal advice.  Read our full disclaimer to the right, or above (click here).

Finally, here is the podcast:

Wednesday, January 7, 2015

False confessions

Dr. Larry White, my coauthor on two articles and a psychology professor at Beloit College, recently gave a great presentation on false confessions.  The presentation should appear below; if it doesn't, you can find it on Youtube by clicking here.  You can also click these links for our article on Miranda and our article on false confessions.  (Click this link for my solo article on Miranda.)


Tuesday, January 6, 2015

Podcast: Episode 1: "Ignorance of the Law"

Welcome to the first episode of The Legal Watchdog Podcast!  In the first half of the podcast we discuss two Fourth Amendment cases.  If you want to read up (so you know what we're talking about and can post comments correcting or criticizing us), you can find the cases at these links:

Heien v. North Carolina  and

State v. Cobbs.

And here's an article (as promised in the podcast) that makes the distinction between the Fourth Amendment (the right) and the exclusion of evidence (the remedy):  An Economics Perspective on the Exclusionary Rule and Deterrence.

In part two of the podcast, we discuss 2014's two Wisconsin expunction cases.  You can find the cases at these links:

State v. Hemp (Hemp I) and

State v. Hemp (Hemp II).

Our funky, jazzy theme song ("Cold Hurt") and our hip-hoppy intermission song ("Rational") were generously provided by David Pizarro.  You can find all of David's music at SoundCloud.

And finally, here is the podcast:


Monday, January 5, 2015

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.

Friday, January 2, 2015

"Invisible airwaves crackle with life"

Coming soon, to an air wave near you: The Legal Watchdog podcast!  We hope to have our first episode posted on the blog sometime on January 6th (barring technological issues beyond my already limited capabilities and control).  To learn more about the podcast, go to the "about the podcast" page, above.  To learn about your podcast hosts, go to the "about your hosts" page, also above.  And then check back here on January 6th!