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.