Bar Meetings: Drinking Tips from an Expert [updated for the 2020 KCBA meeting]

Back in the early years of my law practice, a group of Kenosha lawyers used to gather on Wednesdays after work for the weekly Bar Meeting, i.e., a meeting of the bar at a bar.  Our group was comprised of criminal defense lawyers and others generally interested in protecting individual rights and liberties from the government’s ever-expanding reach.  (Back then I would have described this general mindset as left-leaning, but today it is probably considered right-leaning.)  Unfortunately, these meetings dwindled and eventually disappeared because, I think, lawyers began to get older and marry and do other things. 

I never understood why anyone who practiced something as addictive as criminal defense would want to go on weekend jaunts to Bed Bath & Beyond, do home-improvement projects, go on vacations, read to their children, or do whatever else married people are supposed to do.  But to each of us, his or her own, I suppose.  In any case, children get older and marriages often crumble, so maybe it’s possible to bring back the weekly Bar Meeting. 

But in the meantime, the Kenosha County Bar Association is about to have its annual bar meeting.  Alcohol will be served.  To promote a more enjoyable bar-going experience, I offer these drinking tips from a true expert on the subject, Christopher Hitchens.  From his book Hitch 22: A Memoir:

A Lawyer Dog in Training

Photo by Brenda VanCuick

Recently, in Louisiana, when the police were interrogating a suspect, the suspect invoked his right to counsel by telling the interrogator, “Just give me a lawyer, dogg.”  The court — twisting and contorting plain language and basic legal principles to reach its predetermined outcome, as courts are known to do — found that such language was not an invocation of the right to counsel.  The interrogator simply would have no way of knowing whether this suspect was asking for “a lawyer, dogg,” or a “lawyer dog.”  One writer for WaPo observed: “It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case[.]”

Reasonable Doubt and Relativity, 76 Wash. & Lee L. Rev. __ (forthcoming, 2019)

The empirical evidence demonstrates that, when left undefined and unexplained, the proof beyond a reasonable doubt (BRD) standard offers no more protection than the two civil burdens of proof.  I therefore hypothesized, in a California article in 2017, that BRD jury instructions should define the phrase in the context of the lower burdens of proof, i.e., on a relative basis.  That way, the jury can appreciate just how high the BRD standard actually is.  In this new study turned article, Reasonable Doubt and Relativity, I empirically tested my hypothesis.  This article could be helpful to the Wisconsin Criminal Jury Instruction Committee which, at the request of two SCOW justices, is revisiting our state's jury instruction which completely fails to define or explain the concept of proof beyond a reasonable doubt (and instead focuses only on reasonable doubt, in a very pro-prosecution manner).  You can find a draft of my new study-turned-article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Washington & Lee L. Rev., and read other W&L articles here.  The abstract of Reasonable Doubt and Relativity is posted after the jump.

Combating Judicial Misconduct: A Stoic Approach, 67 Buffalo L. Rev. __ (forthcoming, 2019)

The defense lawyer who steps into court assuming the judge will be competent, even-tempered, and unbiased does his or her client a tremendous disservice.  Read about unethical judges, the problems they pose for the defense, and how the defense lawyer can deal with them in my new article, Combating Judicial Misconduct: A Stoic Approach.  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Buffalo L. Rev. and read other Buffalo articles here.  The abstract of the article is posted after the jump.

Constraining Strickland, 7 Texas A&M L. Rev. __ (forthcoming, 2020)

When a defense lawyer makes a mistake at trial, he or she is blamed for it and is subject to Strickland's ineffective assistance of counsel test.  When a prosecutor cheats or a judge is incompetent at trial, guess what?  The defense lawyer is blamed for not monitoring the prosecutor or doing the judges job for him!  Despite their ethical duties and constitutional obligations to the defendant, the prosecutor and judge skate free, leaving the defense lawyer holding the bag for failing to do three jobs in one: his or her own, the prosecutor's, and the judge's.  Read about this absurd Strickland procedure, and how it should be constrained, in my new article Constraining Strickland.  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Texas A&M L. Rev. and read other Texas A&M articles here.  The abstract of Constraining Strickland is posted after the jump.

Improvident Prosecutions, 12 Drexel L. Rev. __ (forthcoming 2019-20)

In Improvident Prosecutions, I demonstrate the numerous flaws with Wisconsin's preliminary hearing process.  (Prosecutors, and especially judges, should be embarrassed by these.)  I also give the state legislature a blueprint on how to fix these problems.  (Take action, please; I've done the work for you.)  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Drexel L. Rev. and read other Drexel articles here.  The abstract of Improvident Prosecutions is posted after the jump.

Ignorance of the law is no excuse (unless you’re a prosecutor)

In this hot-off-the-presses case of State v. Smith (court decision here, On Point summary here), a Wisconsin prosecutor made an improper closing argument to the jury in an effort to win a conviction.  In a “sarcastic” and “belittling” manner, the prosecutor criticized the role of defense lawyers (in this case, public defenders) and also attempted to shift the burden of proof to the defense.  (These are two of the sleaziest, yet most common, tricks in the prosecutor’s bag.)  Then, on the defense lawyer’s motion, the trial judge declared a mistrial.  However, despite the prosecutor’s misconduct, the state was allowed to retry the defendant.  But why?  And how can defense lawyers prevent this from happening in the future?