In Defense of the Bar Exam

When the number of law school applicants plummeted a few years ago, many schools dipped very deep into the applicant pool – as in near open enrollment – to fill seats and boost revenues.  Not surprisingly, three years later when these students graduated, some schools’ bar passage rates dipped – and in some cases went into free-fall.  (You can see the carnage in California, for example, here.)  The problem is that a low enough bar passage rate for a long enough period of time could put the school’s ABA accreditation at risk.  So the natural response of some law schools was to blame the bar exam as being an unfair test – a position that now aligns nicely with their desire to fill their seats with any student loan conduit applicant who can pass the mirror test.  But now, two deans have written an op-ed on the Tax Prof Blog to point out the flaws in law schools’ worn-out arguments.  Kudos to them; you can find their work here.

The Joe Mixon Video

I just saw the Joe Mixon video on Sports Center, and it’s also available here.  I wish they would have discussed two things.  First, Mixon starts to walk away at which point the victim appears to say something to him, pushes him, and then smacks him in the side of the head — all before he strikes her.  Maybe it’s just the criminal defense lawyer in me, but I’d like to hear a debate about what type of response, if any, would have qualified as reasonably necessary to terminate her unlawful interference with his person.  (As an example of a self-defense statute, Wisconsin’s is here.)  Would a shove have been okay?  What if the shove was forceful enough to put her on the ground but did not cause any injury?  Second, according to Sports Center, Mixon “pleaded guilty to the charge without making an admission of guilt.”  How can a person plead guilty without admitting guilt?  Isn’t that what a no contest plea accomplishes?  (This is either bad reporting or a quirk in Oklahoma law.)  Finally, an observation.  From a purely practical standpoint, there’s a lesson here that should not be overlooked: If you don’t push and smack a person in the head, you will dramatically decrease your odds of getting knocked out.  You know, an ounce of prevention and all that.

A Tale of Two Schools

I just read a Boston Globe article about DeVry University agreeing to pay $100 million to settle a lawsuit.  (Hat tip to “the Chow.”)  The suit alleged that DeVry provided misleading employment data to prospective students.  The school had boasted a 90 percent employment rate.  However, “DeVry was counting students who found jobs outside the fields they studied” including “a graduate who studied in the health care field but found work as a restaurant server and another who worked as a car salesman[.]”

Law Schools, Lawyers, and Dead Philosophers

What's the relationship between/among law schools, lawyers, and dead philosophers? Read my new Wisconsin Law Journal column and find out.

Talking out of both sides of their mouths

For the latest in disingenuous judicial babble, read my newest Wisconsin Law Journal post, "Wisconsin Courts as Superlegislatures," available here.  Enjoy!

Amanda Knox’s Trip to Italy

Let’s face it: It could be many, many months before Season 2 of Making a Murderer is released — although my book on Avery and Dassey will available April 4th.  In the meantime, be sure to watch the Netflix documentary Amanda Knox.  It’s just like Making a Murderer, only set in beautiful Italy instead of Manitowoc, Wisconsin.  Okay, it’s not just like it, but there are numerous, uncanny parallels between the Amanda Knox case and the Avery and Dassey cases, including these:

Convicting Avery (Prometheus Books, 2017)

How often is Wisconsin criminal law and procedure front and center on the national stage? Probably once, and that is thanks to the Netflix documentary Making a Murderer. But of course, a ten-hour documentary about three criminal cases (two for Avery and one for Dassey) doesn't allow much time to explore the laws and procedures behind the convictions. Therefore, I wrote a book titled Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer." It is being published by Prometheus Books and will hit the shelves on April 4, 2017. As the title makes clear, the book will expose the numerous flaws in Wisconsin's criminal justice system that contributed to the three convictions. In the meantime, if you're one of the few people in the world yet to see Making a Murderer, watch it now on Netflix. And if you're looking for up-to-the minute links, news, and commentary on Avery and Dassey, check out the Tick Tock Manitowoc group on Reddit.

Ethics rules clash; SCOW flops on free speech

Check out my latest column at the Wisconsin Law Journal, titled All "Riled" up: SCOW flops on ethics rule 1.9. In it, I discuss the Supreme Court of Wisconsin's decision on my petition to change ethics rule 1.9, as well as SCOW's recently published case In Re Riley, 2016 WI 70, where the court found a lawyer acted unethically for not violating rule 1.9! As Prosser stated in his dissent, there is "serious tension" between the ethics rules, and had the attorney decided to violate rules 1.6 and 1.9 in order to comply with the other set of rules, he could have been fired from his job and even sued by his former client.  The lesson is that with Wisconsin's selectively applied, irrational, and conflicting ethics rules, no lawyer is safe from the long arm of the OLR, which, as one of our state's prosecutors noted, is "more concerned with how they look in the zealous pursuit of an attorney pelt, rather than what result should be reached." (2014 WI 31, ¶ 39.)  On Wisconsin!

Getting closer to the associate’s degree in law

More than two years ago I wrote about Community’s Jeff Winger, a fictional character that faked a bachelor’s degree, went straight from high school to law school, graduated, passed the bar, practiced law, was ratted-out, was disbarred, and had to go back for a post-J.D. bachelor’s to be readmitted to the bar.  (Seasons one through six on DVD here; season six online here.)  I also argued that in real-life, the J.D. is nothing more than an associate’s degree, and law schools should recognize this.  First, as the fictional Jeff Winger and every real-life law student prove, law school doesn’t require a single, college-level prerequisite to get in.  So what’s the difference if the student spends four years and $100,000-plus for a B.A. in puppetry or skips college altogether as Jeff Winger did?  And second, I argued, the third year of law school is pure silliness and should be eliminated.  In fact, some schools at the time were designing two-year programs, but were still squeezing three years’ worth of tuition dollars out of their victims students.  But now that would-be law students are better educated about the limited value of the J.D., law schools are forced to look for creative ways to fill their seats so they can pay their faculty to write cutting-edge legal scholarship. 

On Writing, Publishing, Making Money, and “Making a Murderer”

Photo by Brenda VanCuick

I was searching the web to see if Prometheus Books had posted any type of announcement about my forthcoming book, Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer".  But before I could find anything, I came across a website called Reddit.  (At least I think it’s a website; it really just seemed to be a string of comments.)  There was a discussion of my recent Wisconsin Law Journal article about how the Denny rule prevented Jerry Buting and Dean Strang from putting on a third-party defense at Steven Avery’s trial.  Most people in the thread liked my article.  And so did a guy or gal who wrote “not a bad column.”  (Given there is a lot of bad writing out there, I’ll take that as praise.)  However, he or she also wrote “$$$” and indicated that the dollar signs “were a criticism over the fact that a random lawyer out of Kenosha with no ties to the case is writing a book with ‘Making a Murderer’ in the title.”  I tried to post a response, but couldn’t figure out how.  (The problem, I’m sure, lies with my technological ineptitude; for example, I’ve never snapchatted or pintrested, I’m not even on facebook, and I don’t even know what Reddit is.)  So instead, I decided to write this post to dispel some myths and offer some tips to would-be writers:

State bar confuses silence with loyalty (again)

The state bar has run an on-line article about our rule petition to change SCR 1.9 so that Wisconsin attorneys can exercise our basic free speech rights with regard to public information about our former clients' cases.  You can find our petition and supporting documents here.  You can find the state bar's article here.  And reproduced below is my comment to the article:

This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client." 

State Bar News

Here are three pieces of bar related news for The Dog's readers.  FIRST, the ABA is pushing to make state bar exams uniform.  This would allow lawyers to more easily move from state to state to find jobs.  Unfortunately, newly licensed lawyers would know even less about their specific state's law than they currently do -- and that's bad news for would-be clients.

SECOND, our state bar here in Wisconsin opposes our proposed change to ethics rule 1.9 -- color me surprised.  Our bar collects our dues and is supposed to be working for us, yet has chosen to "protect" the public from lawyers' discussion of public information, rather than protecting our basic free speech rights.  If the Wisconsin bar has its way, we lawyers will still be prevented from talking about even the public aspects (e.g., published appellate court decisions) of our former clients' cases -- also known as our cases.  This is clearly unconstitutional, but our bar and other mandatory bars love to be perceived as protecting the public at its lawyer-members' expense.

THIRD, Wisconsin's mandatory bar can get away with taking our money and then working to violate our basic constitutional rights because it's an entrenched bureaucracy that we are forced to join.  But the bar ought to rethink its position, because it might not enjoy this insanely privileged status forever.  In Arizona, for example, the Irreverent Lawyer is leading a movement to dismantle the mandatory bar and turn it into a voluntary organization.  If he is successful, their state bar bureaucracy would shrivel up faster than a grape in the southwest desert summer sun.   (That is, few lawyers would join if they're not forced to do so.)  Good luck, Irreverent One!  Why don't you take care of business in Arizona, and then come to Wisconsin and take on our mandatory bar?  Knightly offers his assistance in the fight for freedom of speech and freedom of association.