because life is no fun without stereotypes. or 90ft of gold coins.

No, this has nothing to do with the earth-shattering news that LinkedIn is seeking public investment through an IPO. What? You hadn’t heard about that? You don’t care? That’s why I didn’t blog about it.

No, this is about a lawsuit that was filed [PDF] just a day or so ago by the venerable law firm of Jacoby & Meyers, suing – essentially – the legal profession in the Tri-States: New York, New Jersey and Connecticut. The basis of the suit [surprisingly in-depth Courant article] is to force these states to alter their rules of professional conduct to permit non-lawyers to invest in law firms.

The legal profession is very tightly – albeit poorly – regulated and it’s very insular. Law firms are closely held businesses and there are rules that govern who can and can’t own a firm. In CT, the Rule is 5.6, which states:

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time  during administration;

(2) A nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.

The commentary explains the basis for this:

COMMENTARY: The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment.  Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to  the client. As stated in subsection (c), such arrangements should not interfere with the lawyer’s professional judgment. This Rule also expresses traditional limitations on  permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8 (f) (lawyer may accept compensation  from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).

So, in layman’s terms, the point is to prevent financial interests being put ahead of that of the client. No one said the profession didn’t pretend to appear noble.

So what’s this suit all about? Jacoby and Meyers say – basically – it’s a scare tactic. Nothing happens if you let non-lawyers invest in law firms. UK and Australia do it and they have oodles of money, which make them better able to serve clients. So they sued the Judges of the Superior Court, who make up these court rules here in CT, alleging that this prohibition has no rational basis.

Okay, that’s about all I can type on this topic without getting completely bored. I’m sure some of my private practice lawyer friends will have more to say about this, but I’m done.

H/T Ryan for the copy of the complaint.

“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”

It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.

But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.

Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:

‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.

I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.

Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.

Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.

Being a non-violent person and all, my frustration is expressed solely in this way:

Is Tim Curry going to have to choke a b*tch?

Bennett takes a bite at the apple, which in turn causes Greenfield to jump in. Bennett first:

The aim of the legal system—civil and criminal—when someone is sentenced to more time through the fault of his lawyer should be to reduce that person’s sentence, rather than to compensate him for it. Getting lawyers to help fix their own mistakes should take priority over getting them to pay up.

A rule that encourages lawyers who make mistakes that harm their clients to come clean is preferable to one that encourages them to stonewall. Allowing clients to sue lawyers because their sentences are too long encourages lawyers to stonewall. As the law stands, even with no practical sanction, too many criminal defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.

So the rule that a person who hasn’t been acquitted can’t sue his lawyer for negligence, even if that negligence resulted in a lengthier sentence, benefits not only the criminal defense bar but also—and maybe more so—the wrongfully sentenced.

Bennett mentions the problem I have with coddled lawyers, but only in passing. Greenfield places the blame squarely on our shoulders:

The mistake is a problem, but not the most significant problem. The one that undermines our integrity, and gives rise to Rick Casey’s complaint, is our inability to admit our error and correct it. Rather than concede error, lawyers try to bury it. [...]

Rick Casey’s issue is real, and it’s getting worse rather than better. It was a problem before, and is more of a problem today. We are coddled, and we coddle ourselves. No amount of lip service paid to the defendant we failed, who sits in a prison cell while lawyers ingratiate themselves with others to get more twitter love, cares how many followers we have. This mutual admiration society with people we don’t even know is not a substitute for having the guts to own up to mistakes so that human beings don’t spend a second longer suffering for them than they should.

The answer isn’t disclosing whether we possess malpractice insurance. The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang. Do the hard work that minimizes the potential for mistakes. But when a screw-up happens, as it invariably will, make it right.

They’re both right. We are coddled. But they don’t focus on the other “third prong”, as it were, of the coddling. It doesn’t just come from the fraternity of lawyers, but from on high. The coddling of lawyers is institutionalized in our jurisprudence. From the collective mistrust and offhand dismissal of allegations of ineffective assistance that pervades the criminal bar to the vast legal opinions that ridicule such claims to the institutional roadblocks to even getting judicial review of the mistakes made by lawyers in their handling of cases.

Ask anyone who’s tried an ineffective assistance of counsel case. The coddling begins at the beginning. First, the community of habeas corpus lawyers are treated as lepers; outsiders on the lunatic fringes of the criminal defense bar. Trial lawyers are dismissive and uncooperative. Clients seeking redress via The Great Writ are viewed as whiners, their lawyers are traitors. Files aren’t turned over, communication is non-existent and the defenses are raised to maximum alert.

Habeas petitioners then have to jump through unmanageable hoops to actually get the merits of their claims heard by courts. Procedural default, deliberate bypass, cause and prejudice are institutional tools designed to protect the “finality” of convictions and to punish the defendant for failing to do that which a lawyer should have done and didn’t: provide effective assistance and own up to mistakes. The jurisprudence places the onus on the pro-se defendant to recognize that a) his lawyer has messed up and b) that he has an avenue for redress.

And if this defendant is somehow able to surmount the gargantuan task of getting a court to consider the merits, he is faced with the three-headed monster: an uncooperative trial lawyer, a skeptical, cynical and weary judge and a veritable landfill of caselaw that is designed to thwart his every effort to ensure that “justice” is done in his case.

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).

Strickland v. Washington, 466 U.S. 668 (1984). Courts are even given the power to deny the petitioner relief on either prong of Strickland:

Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong. See Taft v. Commissioner of Correction, 47 Conn. App. 499, 504[...] (1998). We therefore need not decide whether the petitioner was denied the effective assistance of either his trial or habeas counsel because he has failed to demonstrate that he was prejudiced by his counsels’ assistance, whether or not it was deficient.

Denby v. Comm’r, 66 Conn. App. 809 (2001). Everywhere he turns, there are untameable lions guarding the exits. The collective ego of the profession prevents the one person whose life is altered by a brush with the justice system from every seeking and gaining redress. This is not surprising. Judges, after all, were also once lawyers. And the conventional wisdom, shared by most judges and prosecutors and defense lawyers, is that habeas is nothing but hogwash; another lame attempt by a clearly guilty man at escaping blame for his own evil and immoral actions.

If this is to change, if we are to truly care about the people that are processed like cogs on an assembly line, then the first step is to view ourselves not as entities distinct and separate from the people we represent, but as a manifestation of them. An incarnation, if you will.

If the conviction of the client is a conviction of the lawyer; if the days spent in jail by the client are days that the lawyer will have to also suffer, then and only then will the interests align. To be sure, there are few who already possess this view. The vast majority do not. To them, the attempt by the convicted client to shave a few years off his sentence, because of something the lawyer missed (or not), or the attempt to seek a new trial or to withdraw the plea of guilty are nothing more and nothing less than personal insults that impugn the reputation of the lawyer who goshdarnit did his best for the cretin that happened to walk through his door.

Us and them. While this divide exists, we cannot truly be counselor and representatives of our clients. We cannot change the system that views “them” differently. We cannot fulfill our duties and responsibilities to ensure that our clients’ rights are paid more than lip service.

This doesn’t happen overnight, there will be no sudden realization. It takes small steps. One lawyer here, one lawyer there who refuses to laugh along with the crowd at the ridicule of the defendant. Two lawyers who recognize the importance and value of The Great Writ, who have the courage to admit their errors even where they may be negligible. To realize that they have the comfort of going to their own homes at night, while the client will suffer in isolation. Whether this be by letting go of our egos as Scott writes or some sort of penalty as Mark considers and rejects or a change in the jurisprudence, it must be done for the sake of the client.

This is not an issue of “just desserts” or blame or punishment. This is about the ability to sleep at night, peacefully, knowing that you have done everything in your power to uphold the awesome responsibility of your profession: speak for another man when no one will.

We fight the institution. Why stop when the client is convicted?

I’ll probably tune in, just to see what real world experience brings to a legal show. The reviews have been mixed, but that shouldn’t stop you.

For example, some guy in the Boston Herald writes:

In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.

Never has the justice system looked so silly.

That’s not silly! I read that and think: “Hey! Maybe this show is true-to-life!” So we’ll see. Will this come close to unseating The Practice as the best legal show of all time? I don’t think anything can, but I’ll be very entertained if it comes remotely close.

If you’ve been living under a rock (or just without TV) and want to get a glimpse of this show, here are some links:

Behind-the-scenes

Sneak Peek

But, if you’re using Firefox, you’ll have to download some stupid Turner plugin. Which, in this day and age, is just annoying. So instead, you’re better off using IE for these links (ugh).

Note to TNT folks: There are, like, 200 video plugins out there that don’t require some software install. Use one of them [or just use Flash!?!]. Don’t make me install some special plugin for your website only and under absolutely zero circumstances should you force me to use IE to look at a website. Because once you do that, I’ll never come back to your site.

A different face

Everyone who practices law will be familiar with the concept of “cover”. No, it is not a legal principle, but means exactly what the verb form suggests: cover your cases.

Lawyers (especially those in private practice) will have multiple cases on for any given day. If you’re in a small-ish state like Connecticut, where you can practice throughout the State, these multiple cases will appear on the dockets of multiple courts. Since you can’t be in two places at once (well, you can, if you’re a particle), you might have to get someone to cover for you in one court or the other.

Until now, “covering” (not to be confused with cowering – which you might have to do depending on the judge you’re in front of) was sought by way of impassioned pleas to fellow defense attorneys via the local listserve – or if you had a partner in your law office, promising them lunch. (This concept would seem to be a subset of the bank that apparently has shut its doors.)

But then it gets tedious. If you have a particularly busy solo practice, people might start getting annoyed if you keeping asking them to cover for you.

Never fear, though. In this age of innovation and niche marketing comes attorney Steve Levy – apparently of Los Angeles, CA. I say apparently because he has launched a service: “Appear Anywhere“, with the tagline “Court Appearance Professionals”. The gist of the service is described thusly:

Your time is valuable.  Increase your productivity by sending us the appearances you don’t have time to cover and have confidence knowing that you’ll receive accurate and reliable results on the same day.

Among the various types of appearances this service purports to cover includes trials. Yes, they will cover your trial for you.

The services and about us page do not seem to restrict this geographically, so it would seem that when that trial comes up next week that I really don’t want to go to Court for, I will be calling this company you could get them to try your case for you, even if it is in Maine.

Judges and lawyers both should salivate at this idea. No more worries about problems clients, troublesome clients, difficult clients, annoying clients. Client starts getting uppity, ship him to Appear Anywhere! No more motions to withdraw appearance, no more continuance motions, no more Anders briefs. The system works like a well-oiled machine and everyone is happy (except the client, perhaps, but who cares about them anyway).

It’s like having an associate without having to pay the hefty yearly salary! An ingenious idea, if I ever saw one.

(In all seriousness, the idea isn’t half bad, but only if you restrict its use to mundane appearances where you are only getting a continuance and the client doesn’t need to be present. If you ever have a court date where your client needs to be present, you better get your butt in gear and show up and it would behoove the lawyer to also be personally present at any court appearance where something substantive will be discussed. But this goes without saying, which is why I’m mentioning it as an aside in parenthesis.)

So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?

Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.

Jury instructions are long, painful, meandering and – above all – repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.

Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.

It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.

I catch myself talking to clients in legalese sometimes – and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.

Briefs are the same – wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?

Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives – and our jobs – would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.

Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try – for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?

(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)

Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:

I can’t help anyone “get away with murder.” No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn’t cheat. That’s not the same as helping you get away with murder.

It is to me, if I’m a murderer.

I don’t think Rob means what he wrote (at least not the way I’m taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don’t do what I’ve always thought they do, because I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.

Pretty much every defense attorney has been asked that question and most of us have fine-tuned our stock responses. They’re variations of the same “I’m defending the Constitution, asshole” meme. But is that what it really is? Losses sting in our business. We see clients sent to jail for decades and we never forget those cases. So wins do mean something. Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?

Because that’s essentially what we do. We don’t step aside once all the illegal evidence has been suppressed. If a prosecutor does everything by the book, we don’t put up our arms and say “well, you got us. He’s guilty; take him away”. Of course not.

We fight. We fight tooth and nail. Not because we absolutely believe that our client is innocent – in fact, most of the time we don’t care whether the client is guilty or not.

We use phrases like “make the State prove its case” and “the burden of proof is on them and if we don’t make them meet it, the slope will start slipping”.

So for a while there, I was almost convinced that yes, we do help them “get away with it”. But then I remembered that 96% of cases don’t go to trial. The ones that do have serious questions about the guilt of the defendant. It is in those cases that the cliches apply. In the rest of the cases, we plea bargain. And that’s where we don’t “help them get away with it”, but we help them put their best foot forward by acting as their representative in a world that sees them as the same as the next guy and another statistic to sentence and forget.

Every case is different and every defendant is different. What might be a just sentence for one is not for another. That’s our job. To help our clients gain a foothold in a world that has long since abandoned them and forgotten them. A world that tries so hard to homogenize them. A world that wants to paint them with the same broad brush-strokes. It is us, the criminal defense lawyers, that stand up to the world and say: “This is a man, with his own life, his own experiences and his own achievements”. He is not the same as the next man, just as the next man is not the same as him.

So, for the most part, our job is not helping them “get away with it”, but rather reminding the rest of the world that they are not cattle. We fight for that which is right and appropriate. We fight against indiscrimination and prejudice and stereotypes. In that sense, we fight for us all, because we are all unique and special in our own ways. We don’t forget that and neither should you.

The Law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind. In medicine, in mathematics, in sociology, in psychology – in every other one of the physical and social sciences – the accepted aim is to look ahead and then move ahead to new truths, new techniques, new usefulness. Only The Law, inexorably devoted to all its most ancient principles and precedents, makes a vice of innovation and a virtue of hoariness. Only The Law resists and resents the notion that it should ever change its antiquated ways to meet the challenge of a changing world.

More about Rodell here. H/T: f/k/a

Like other writing coaches, Garner sees the influence of technology in attorney writing, and, in many ways, he is not amused.

“They are losing concentration with what they’re writing about,” said Garner, who also is co-author with U.S. Supreme Court Justice Antonin Scalia of Making Your Case: The Art of Persuading Judges, which was released last month.

This piece spends a considerable amount of time explaining how advances in technology serve to interrupt the “flow” of a writer’s thoughts and create distractions. These distractions prevent us from writing in a coherent and simple manner.

“It’s a problem of distraction,” said Jennifer Murphy Romig, a legal writing and research instructor at Emory University School of Law and a writing coach to law firms.

She notes that interference with writing has always been present. A few years ago, it was computer solitaire, she said, and before that it was the old-fashioned crossword puzzle. But she describes today’s distractions — including texting, e-mail on a desktop computer, Blackberry messages and online news alerts — as “more aggressive.”

In addition, most of those distractions involve human communication, which makes them all the more attractive to attend to rather than drafting a brief on, say, jurisdiction.

My problem with writing is slightly different. As my readers (and co-workers) will surely attest, I often don’t know when to stop or how to get where I want to go. I’m not ashamed of it. I’m always learning, trying to get better.

I write (for work) like I think: mostly meandering. It’s not that there isn’t a (to me) logical sequence. There is. I just leave it out and expect the reader to follow. And then there are the times when I’ve had enough. I’ve spent 5 pages setting up the law and the facts and started making the argument and I think to myself: Well, that’s pretty clear. So I move on.

Like this.

Technological innovations also have an up-side, as anyone who has used spell-check will know.

Word processing basics, such as spell-check, passive-voice detection and subject-verb disagreement prompters can make more time for “what’s really hard about writing,” she said.

Advances in legal research also have improved writing, she said. Before online research, Shepardizing a case, for example, required a trip to the library to page through creaky volumes.

But the use of electronic research can create problems, especially for beginners, she said. All cases in electronic form look basically alike, she said.

That last line is a lead-in to a bizarre theory that if you don’t hold the book in your hand, you’re likely to miss that a case is from a non-binding jurisdiction or from the 1920s.

Or it could just be a cover-up for inattentiveness. I’m just saying.

I think these “problems” are not confined to legal writing. The same could be said of trial lawyering, communication, negotiation. We are a constantly distracted society and either you have it in you to focus and push everything else aside, or you don’t. In which case, you better learn how to multi-task well.  In the end, all that matters is the client and how effectively you represent him/her.

See? What the heck did that last paragraph have to do with anything? Come join the joyride!

(PS: Obviously, my work is vetted before I turn it in [for the most part], so don’t run around thinking my briefs are awful. They’re not.)

HT: WAC?

Now enjoy the Joyride:

[youtube]http://www.youtube.com/watch?v=UfPoVS5uqYY[/youtube]