Join me in the revolution

I always use the Oxford comma.  Not only does it look better—why anyone ever thought that removing it was a good idea is beyond me—but not using it can lead to confusion.  Here's a specific example of why I always use it.  

A recent article’s subtitle from the WSJ reads: “The group is in discussions with Israel over releasing 40 women, children, elderly and sick captives.”  We don't know if “the group” would be releasing only men who are "elderly and sick," or "men who are elderly" and "men who are sick," but not necessarily both.   That’s a dramatic difference—especially if you are, say, the parent of a man being held captive who is sick but not elderly.

The end of the Legal Watchdog (emails)

Although Knightly and I are both getting older and tire far more easily, we're not done writing blog posts quite yet.  But our email alerts will soon be finito!  If you currently receive an email announcing new posts, I am told that as of August the system will no longer support that feature.  So please bookmark The Dog and check back for new posts periodically.   

In the meantime, if you listen to podcasts, Knightly recommends The Trials of Frank Carson.  What happens when a defense lawyer beats up on the central California police, prosecutors, and judges for more than two decades?  The district attorney's office charges the defense lawyer with murder!

Finally, watch for my new law review article, Disorderly Conduct: An Investigation into Police and Prosecutor Practices.  What's this one about?  Well, in academia, law professors have started complaining that the disorderly conduct statute is being abused by racist police, i.e., the police are "surveilling communities of color for signs of disorder" and using the statute as a means of "social control against people of color."  To some law professors, everything is about race, so I decided to test this claim by analyzing a sample of real life Kenosha County disorderly conduct cases.  In the article, I not only look for police abuse of the statute, but also for prosecutorial abuse.  The results might surprise you.  Stay tuned to The Dog for a pre-publication draft of the article once a journal accepts it for publication.

"Let's see Paul Allen's card."

 

For a deep dive into the business cards, see here.

Speaking and Writing Tips from The Legal Watchdog

Being stuck at home has caused me to watch more TV than I usually do.  This, in turn, has exposed me to more talking heads than usual.  And this has given me the opportunity to compile a list of things that everyone should immediately stop saying.  Plus, there's a bonus tip for writers:

1.  As a general rule, don't begin sentences with "so."

2.  Stop asking whether you're "right?" in the middle of a sentence or even between sentences.

3.  Don't overuse the word "space."  E.g., you are not a leader in the fashion space; rather, you are a leader in the fashion industry.

4.  Stop trying to start a "national conversation" or "raise awareness."  Find new labels to exaggerate the scope of your endeavors.

5.  Don't begin a new point with "that said" or "having said that."  It's a sure sign you're about to contradict yourself and it makes me want to punch you. 

6.  Stop saying "again" as a preface to sentences.  Often, the information that follows isn't even repetitive.  And if it is, stop repeating yourself.

7.  Don't say "not to mention" before you mention the thing that you just said you weren't going to mention. 

8.  Don't say "it goes without saying."  Because apparently it doesn't.  See also #7. 

9.  Things don't center around other things, they center on other things; they do, however, revolve around other things.  E.g., The President’s existence doesn't center around the Corona-Chinese-Wuhan-Covid19 virus; it revolves around it, or centers on it.

10. Don't "reach out" to me.  Call, email, or put a letter in the U.S. Mail.

11. BONUS WRITING TIP: On a related note, always use your Oxford comma. See, e.g., #10 and #12.

12. Stop referring to someone's position, claim, or argument as a "narrative."

This public service has been brought to you by Knightly.

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:

Free speech: A message for public universities (and their students)

For the universities, before you spend any more time and money expanding the university bureaucracy to implement that micro-aggression reporting system, read Matal v. Tam.  It doesn't say anything the rest of us didn't already know, but here are some quotes of interest from the decision, along with some concluding remarks to the universities and their students:

Bill would protect free speech on UW campuses

I used to think that the only constitutional rights in danger were those associated with criminal law.  A classic example is the Fourth Amendment.  When a defendant moves to suppress physical evidence (typically a small amount of marijuana) in a criminal case that was set in motion by an illegal search, courts will bend over backwards to find that no Fourth Amendment violation occurred.  And even when they are forced to concede that the defendant’s rights were, in fact, violated, they insanely conclude that the defendant is not entitled to suppression of the illegally obtained evidence.  (For more on this mind-boggling state of affairs, see this article.)

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!

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."

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.

Giles was right

One day in the fall of 1997 during my first semester of law school, I was standing in my parents’ kitchen while taking a break from reading casebooks. I was channel surfing on a small television that my mom kept in the cabinet above the refrigerator, and stumbled upon the show that Entertainment Weekly would soon label the best on television: Buffy the Vampire Slayer. (DVDs available here.) Back in 1997, the internet was just coming into its own, and the episode’s subtext was a debate between the stuffy, stuck-in-his-ways school librarian Mr. Giles, and the hip, sexy computer science teacher Ms. Calendar. Ms. Calendar was trying to convince Giles that books were a thing of the distant past and that information shouldn’t be bound-up, but instead should be virtual. Giles disagreed. 

"Quote unquote."

When I write blog posts, articles, and even books, I operate largely on intuition and feel. That is, I can't articulate the rules of the English language -- such as where to use a dash or a semicolon -- yet somehow I have a decent idea of what to do. And when it comes to speaking, I, like most people, use language in a fairly sloppy manner, at least compared to my writing. So, given my own imperfections -- which I admit are deep and many -- I am very tolerant of the blogs, articles, and books that I read, and even more tolerant of the podcasts to which I subscribe. But there are a few things that bother me like a fly buzzing around my ear. Let's start with the phrase "quote unquote."

The death of books?

I love movies about writing.  Whether it’s a movie about short fiction and book clubs (Kicking and Screaming), book-length poems and multi-volume “confessions” (Henry Fool), investigative reporting pieces (Safety Not Guaranteed), the great American novel (Sideways), academic journal articles (Tenure), or even magazine restaurant reviews (The Trip), these writing-themed movies are often smart, witty, engaging, and far more interesting than any summer blockbuster.  But in the newest movie (Wonder Boys) to make my DVD collection, the old, nearly used-up novelist character laments: “Books.  They don’t mean anything.  Not to anybody.  Not anymore.”