Here we have another example of how the courts have decided that the quaint concept of “justice” is no longer compatible with modern life.  The court in Pace v. United States Automobile Ass’n, 2007 U.S. Dist. LEXIS 49425, 9-10 (D. Colo. 2007) has held that because the courts decided to put themselves in the same class as pornographic spammers and stop using the United States Postal Service with its more than two centuries of service, law firms and their clients will be punished.

The Internet, for all the good that it has brought otherwise, is still relatively new and unreliable when it comes to the consistent and competent dissemination of information — time-sensitive or otherwise.

This morning, for example, I received a phone call from a program placement counselor.  I had requested my client be evaluated for in-patient placement before an upcoming hearing.  Several days ago, I emailed the evaluator to inform her the client’s family had paid the evaluation fee and she should proceed.  Now, I’ve exchanged several emails with this evaluator, so I had no reason to think my email would not be received.  But this morning’s message on my voicemail had her asking me to notify her when the family made its payment so she could get started, since the hearing date is fast approaching.  So, I sent her another email, but (to be safe) I also called her (and was forced to leave a voicemail when I could not reach her).

On this blog, not to mention email, I daily wade through tons of spam to avoid missing comments people might post in response to my articles.  While looking for an old missing email this evening, I happened to run across a different email than that I originally sought, concerning the Pace case.  Although I thank the gods (no, judge, I didn’t mean you) it’s not a case to which I’m assigned, I missed the message because my filters kept it from my Inbox folder!

The Pace court stated:

The court acknowledges that Mr. Bridgers,’ Mr. Markel’s, and Ms. Baxter’s [the attorneys who were not notified of the hearing because the court allowed itself to be identified on the Internet as a pornography spammer] absence was not wilful or contumacious. It was, instead, simply negligent because of the manner in which their computer was set up to deal with notices the court issued through its ECF system. While that may explain the absence of plaintiff’s counsel and help to make it somewhat understandable, that is not enough.

And, since “that is not enough,” the court penalized the attorneys by requiring them to pay attorneys’ fees to opposing counsel.

On the one hand, some smug self-righteous individuals (yes, of course: judges) might count this as justified on the grounds that the firm responded to its female employees’ complaints by tightening its spam filters when it should not have.  On the other hand, the reality is that the courts don’t give a rat’s ass about justice, which requires notice, among other things.  Instead, ironically, they behave more and more as arbitrary, procedure-oriented (except when the procedure benefits the accused), content-blind and unfeeling bits of computer code.  They’re apparently sophisticated enough to hire secretaries who know how to use the Internet (you don’t think the judges themselves actually send email notices to attorneys, do you? half the living judges wouldn’t know how!).  But they’ve never heard of telephones and couldn’t suggest that when the attorneys didn’t show up after an email — EMAIL! — was sent, that someone call the firm so they could send someone to attend the hearing.

What the hell is wrong with you people?  Have we truly reached the point where following imperfect procedures matters more than justice?  Why aren’t you ashamed of yourselves?

Someone, please: shoot me now!  I don’t know how much more “justice,” I can stand!

These days, anything the police wish to do is not only justified, but considered a-ok, no problemo, what-the-hell-are-you-complaining-for?-we’re-just-trying-to-keep-everyone-safe. Anderson Cooper goes so far as to complain about stupid people (kids, in this case) who “waste time” by protesting the abuse of their civil rights.

In my job as a defense attorney, I’m having to file motions to obtain the most basic of my clients’ rights. People who have been arrested, apparently, no longer have them. Just because they were arrested. Forget preliminary examinations; forget trials; forget due process of law. Our nation no longer follows the rule of law. Instead, we have the rule of law enforcement. And anything goes.

Sheriff wants to put intercom systems into all interview rooms where attorneys meet with clients, so they can listen in at the flip of a switch? So what. It’s for “safety” purposes. Police want to invade parties because they see kids drinking from red cups? So what. “Safety” is the issue. Our President wants to invade countries that have not attacked the United States? So? Again, it’s safety.

Perhaps it wouldn’t be so bad if safety actually mattered. But it doesn’t. “Safety” is the pretense that allows the State to do whatever it wants. The State may violate any law — it matters not that the laws may have been enacted hundreds of years ago to constrain the State.

No one, no law, no Constitution must stand in the way of “safety.”

The article focuses on trial judges, as opposed to the norm of studying appellate judges. That makes it interesting to many of us in and of itself. The most interesting part of the article focuses upon three questions — and how the judges in different areas of the country answered it.

The questions are posed in such a way that an “intuitively right” answer leaps to mind almost immediately. When judges got it wrong (which was scarily often), they usually did so because they relied upon their intuition. In answering the first question, which is deceptively quite easy to answer, more than 88% of those judges who got it wrong came up with the “intuitively correct” answer. The second question seems harder, which subconsciously clues the reader that intuition might not be a good way to go. In that case, more than 57% of the judges who got it wrong gave the “intuitively right” answer. And, on the last question — and this really scared me because the correct answer virtually screamed itself out to me — 85 out of 125 judges who got it wrong (68%) did so because they jumped to what the article said was the “intuitively right” answer. (As I indicated, another answer, which was the correct one, seemed “intuitively right” to me. So that any judge got it wrong worries me.)

Most interesting of all is that the judges who got things wrong by going with the intuitive answer were more likely to say that the question was easy. I guess one lesson to take away from this is that if a judge thinks the answer is “easy” and disagrees with you, you’re going to really have to work to explain why his intuitive response is wrong.
Another point of note: gender, age and political affiliation had nothing to do with whether the judges got it right or wrong on this. The mistakes were across the board.

The article explored the ways in which the seductiveness of the “intuitively right” answer shows up in court. More complicated problems, like intricate, rule-bound Fourth Amendment search and seizure analyses, tend to produce less of a tendency to rely upon an intuitive answer for many (*sigh* not all) judges. I would suspect this also means that careful exposition which closely and methodically draws the link between the facts and the law in suppression motions would be more likely to obtain a positive result than those which are conclusory in nature. On the other hand, “vivid fact patterns” (the phrase is from the article), upon which prosecutor’s not infrequently rely in criminal cases, have a tendency to provoke an “intuitive” response.

Finally — because if I keep going with this summary, you might as well read the article yourself (not that you shouldn’t; it’s just that you don’t need to do so, in effect, twice!) — the article looks at how we might overcome the tendency to intuition. Minimizing “spur of the moment” decisions, not surprisingly, is first on the list for how to overcome this tendency. Evidentiary issues tend to provoke the intuitive response and are often decided in the heat of trial; pre-trial motions on anticipated evidentiary issues can help. I’m not sure how we’d get trial judges to do this, but WRITTEN opinions provoke a more deliberative response. Asking for reasons can help.

As the article itself states in closing, “[C]ogent legal judgments call for deliberation. Justice depends on it.”

Maybe it’s me who’s missing something, but I didn’t notice that the list was called “The ONLY 50 Ways to Market Your Practice.”

Several attorneys I know maintain blogs. They don’t mention their blogs every time they give someone advice on marketing.

At one time, I was a quite avid blogger. These days, though, by using some of the tips listed on the “50 Ways to Market Your Practice”, I’ve found myself too busy to blog much. In fact, it’s a struggle to find time to read a few good blogs, since so many of them can take two-to-three paragraphs to say things like, “You should blog” — and many of those blogs don’t add much more useful information to my day than that. (This comment is not meant to disparage Home Office Lawyer, which has had some interesting posts on the iPhone, using blogs productively (including discussions of ghostwriting), fixed fee issues and so on; I was just using this one post as an example.)

My wife is already complaining about being a “law widow.” I can’t imagine what would happen if I added time for blogging to the mix!

Besides, not all attorneys are good writers. (A great deal of my current practice is writing for other attorneys who either don’t like writing, or rightly consider that their skills lie elsewhere.) I don’t see anything wrong with giving those attorneys tips they can use, instead of having every list out there tell them they have to write a blog.

On top of that, a good argument could be made that blogging — or “blawging,” as the effete seem to prefer — is far from the best use of one’s marketing dollars and time. Most blogs don’t have much of a readership. My own blog, before Aplus screwed things up for me, had 250 readers per day. That was after three years of writing. Sure, my name often appeared at the top of the list when people searched for information on topics written about in my blog. But 250 readers per day, if your goal is getting the best bang for your buck advertising-wise, isn’t much, especially when you consider that not all those readers will be living close enough to you to want to retain your services. And most “blawgs” won’t have that level of readership.

(On the other hand, pay Lawyers.com or Findlaw.com a little chunk of change and you’ve got your Internet presence and potential clients in your area will find you when they’re looking.)

Seen in that light, the tips on “50 Ways to Market Your Practice” make a lot more sense. They’re “local” suggestions:

• Join your local Chamber of Commerce…
• …write an article for your local paper…
• …get a local reporter to use you as a legal expert.
• …and so on.

In addition, numerous other tips on the list have “local” impact in that they’re targeted at doing things involving people you’ve actually physically contacted, such as when the list suggests “Get a unique business card and hand it out freely” or “Send holiday cards to everyone you meet and keep the list growing.”

Blogging can be fun. It can be a wonderful outlet, too, for those who love to write. And it can be useful as a piece of your marketing plan.

But criticizing the ABA list — compiled from suggestions of successful solo practitioners — because it didn’t include blogging or “blawgs” is like criticizing someone because they didn’t mention that one way to get from Cleveland to California is by car. Sure, that works. But airplanes are oh-so-much-more efficient.

My frustrations as a somewhat-recently-minted lawyer are mounting. Although I’ve now had approximately four or five years, including my time as student and law clerk, to become used to the way our criminal justice system works, or, actually, doesn’t work, it still really wears me down when I take a moment to think seriously about where we are. And where we’re supposed to be.

But tonight, I’m taking a break (uh-huh), by reading Janson’s History of Art (Sixth Edition). And I’ve run across these words:

The Renaissance must have been an uncomfortable, though intensively exciting, time to live in. Yet these very tensions, it seems, called forth an outpouring of creative energy such as the world had never seen before. It is a paradox that the desire to return to the classics, based on a rejection of the Middle Ages, brought to the new era not a rebirth of antiquity but the birth of modern civilization. — Janson, History of Art (Sixth Ed. 2000) p. 384.

I think — and I could be wrong — that we are at least two decades into a New Era in the history of humankind. But, sadly, I don’t actually think it’s all that new after all; it is a kind of negative Renaissance. A return to the Dark Ages.

The seeds of it began to sprout a few decades ago. Hell, now that I think about it, they probably germinated almost from the same day as the Founding of our Nation. The growth was quite — extremely — slow at first. And in the last several decades only has it really become noticeable. How prescient was Thomas Jefferson, one of our Nation’s Founders, when he wrote to William S. Smith in 1787 and said, “God forbid we should ever be twenty years without such a rebellion [as that which lead to the founding of our country]… We have had thirteen States independent for eleven years. There has been one rebellion. That comes to one rebellion in a century and a half, for each State. What country before ever existed a century and a half without a rebellion?”

The problem is that we really do seem to be moving into a kind of New Dark Ages. The Law has been all-but-abolished. Our judges no longer concern themselves with precedent, logic and the idea that there are certain inalienable Rights we each inherit by virtue of simply being alive. The New Dark Ages are marked by Legal Positivism, the idea that the Law and Rights are what those in power say they are.

*sigh*

Four days of almost no sleep, as I fruitlessly pursue pro bono cases defending people who shouldn’t even be charged are taking their toll.

Maybe I can make more sense of this in another post…or several….hundred….thousand….

In any event, what’s most ironic is that the Venus was most likely unknown in the Renaissance period, the reading of which inspired this post. If I recall correctly, she was not re-discovered until the 1800s. So the thinkers, artists and others of the Renaissance knew nothing of her.

Oh, well, that’s what I get for writing down my thoughts so late at night after four days of almost no sleep, eh?

Rape itself, of course, is a crime. Even in the United States, we still put people on trial when they are accused of crimes. The purpose of a trial is to decide if they did commit a crime. Until the jury hears all the evidence and decides if a crime has been committed, we don’t know. Or, at least, those of us who are honest don’t know. Because, as I said, that’s the purpose of a trial: to find out if a crime has been committed and if the person who committed the crime is the person on trial, “the defendant.”

Some defendants are actually innocent. They did not commit the crimes for which they are accused. Some are just “not guilty,” which means we aren’t really sure they committed the crime. We have “a reasonable doubt.” Some are guilty, but not of the crimes they’re charged with having committed. And some are guilty of exactly what they’ve been charged with (maybe more). All of this, however, is really something I should discuss on another day, in another post.

The point of this post is this: The purpose of a trial is to determine if a crime has been committed and if the defendant is the person who committed the crime.

So it’s a little odd, to say the least, that a witness has filed a lawsuit because she wants to testify that a crime was committed and that the defendant is the one who did it. She does not want the jury to decide the question; she wants to tell them the answer. She’s not even satisfied with stating the facts as she sees them. “It’s not enough to tell the jury that I woke up into consciousness to find someone ‘inside me’ when I didn’t want that. I need to be able to repeatedly state the legal conclusion the jury needs to come to: he raped me; he sexually assaulted me.”

And the best part of all? She says it’s her right under the First Amendment. By trying to make sure that a man’s Fifth, Sixth and Fourteenth Amendment rights — among others — are not violated, she argues, the State is denying her right to freedom of speech.

One of these days, we have to start teaching critical thinking, as well as social studies and “civics,” in our schools again.

It’s a sad day when people really honestly believe that skipping trials in criminal cases is a First Amendment right.

This morning, a representative of Martindale-Hubbell calls to ask me how satisfied I am with the service. Whoa! Was that a mistake, or what?! (See my last article for a hint of how I feel about legal advertising.)

On average, I’m finding that these online websites charge approximately $2600 to $4000 per year for the privilege of being in their database. Being in their database, theoretically, means that you’re going to get phone calls from people who search for attorneys using their database.

Well, I’m not going to beat a dead horse. If spending that kind of money actually resulted in phone calls, it would be worth it. Fact is, I’ve spent nearly $6000 for online advertising. Over the last few months, I’ve managed to get one phone call that resulted in a client. If I manage to get one more this year, my ads will finally have paid for themselves (assuming it’s a normal-sized job).

Well, maybe. It depends. Martindale-Hubbell, for example, informs me today that when I signed the contract with them, the contract price was just an “estimated” price. That’s right. As represented to me, I signed a contract for x-number of dollars, but that’s not my actual bill.

Apparently, the bill goes up if you add any information about yourself to the database. I added more than the five or six words that you’re apparently allowed with the base contract. (After finding this out, I went back and removed all words about myself except for my website address. And, oh, by the way, these companies refuse to point anyone directly from the database to your website. If a customer clicks on the link for your website, they first have to go look at a really cheesy page designed by Martindale-Hubbell. On that page, you can put a link that will take them directly to your own website.)

I don’t know. It seems to me that if you go anywhere else — buy a car, a refrigerator, or even hire a criminal defense attorney — if you end up paying more than you agreed to pay and the response is “well, the contract price was just an estimate,” I don’t think it would fly. I know if I did that, the State Bar would be all over me about it.

But there doesn’t seem to be a solution to this problem.

And I guess that’s why, next year, I won’t be spending any advertising dollars. So far, nearly all my clients come to me via referrals anyway, with one signed up because of the online advertising dollars I’ve spent.

And as long as companies like Martindale-Hubbell are going to refuse to give me what I want and what their reps represented to me that I was buying, I’m done with them.

If you read this far, I apologize for taking your time. This was intended as more of a “rant” post. (I should probably create a new category called “Rants.”) If you read this thinking it was a real article like I used to write, I’m sorry. I guess I should have just called it an “estimate.”

It’s funny how just hearing a name can shape your entire mood. Moments before, I had been laughing over some funny videos someone had shown me. Then came the words, “Hi. I’m calling from Findlaw….” Suddenly, the laughter was gone and I instantly felt angry.

As a new attorney, I have no choice but to advertise. Established attorneys obtain a lot of work via referrals, but when you’re brand-new, the only people who know you exist are friends and family. Friends and family are not your best means to making a living wage. For one thing, it doesn’t really feel right to charge them; after all, they’re friends and family! For another, I’m a criminal defense attorney…with a pretty decent, law-abiding set of friends. And, uh, most of my family is pretty decent, too.

So, as I said, no choice but to advertise. Even more disturbing, there is almost no choice as to how I advertise. Sure, I have my websites — RHDefense and GangDefense.com — but what’s needed is for people to be able to find me when they don’t know it’s me they’re looking for.

Enter Findlaw…

Findlaw is one of those websites, like Lawyers.com or TheCityOfFresno.com, where people like me can advertise. The problem is that these websites are somewhat more concerned about their own success than they are about mine.

Now I understand that. They need to survive and make money. And, after all, if they didn’t survive and make money, eventually they’d be no use to me. No one would use their services and therefore no one would find me through them.

But it’s supposed to be a win-win situation, isn’t it?

Instead, Findlaw is structured in such a way as to force me to meet their needs and satisfy their bottom line, with a minimal amount meeting my needs. What I need is to have eyeballs on my website so I can obtain clients, earn money and be able to pay my bills. What they need is to have eyeballs on their website, keep them there as long as they can and take my money to pay their bills.

And so it is that Findlaw refuses to allow people to be directed straight from my listing in their database to my website. Instead, I have to sign up for their cheesy website. Potential clients who may be interested in me will not learn much about me from clicking the link that says “website” next to my name, because they will be directed to Findlaw’s idea of what my website should be.

Sure, I could pay beaucoup bucks for something decent at Findlaw. But why? I already have two decent websites!

If only there were some better way to advertise. Seems like everyone and his dog wants to take your advertising dollar, but, in the end it’s hard to see how they’re really helping. Yellow pages, radio, television, newspaper — I’ve even tried pizza box tops! (and, boy, if I were selling pizza, I’d be doing great; seven phone calls this week alone, from people wanting another pizza). I’m getting more referrals from the aforementioned friends and family!

Anyway, that’s my rant for the month. One of these days, I’m going to convince myself to start bloging again like I used to “in the old days.”

I’m of a mixed mind on this. On the one hand, I’m in favor of free speech and people — even prosecutors (within reason) — should be able to say what they want. On the other hand, District Attorneys already too frequently ignore the rules of their profession. Their goal, according to the code of conduct for DAs, is supposed to be “to seek justice.” And that’s always been interpreted to mean that they objectively press their cases in court. As the California Supreme Court noted, “The public prosecutor’s proper interest is not that it shall win a case, but that justice shall be done.” (People v. Vasquez (2006) 39 Cal.4th 47, 55 [45 Cal.Rptr.3d 372].) (A defense attorney’s job, on the other hand, is essentially “to win.” (People v. Cropper (1979) 89 Cal.App.3d 716, 720 [152 Cal.Rptr. 555].) But that’s a topic I’ll reserve for some future article.)

In fact, Rule 3.8 of the American Bar Association Model Rules of Professional Conduct arguably precludes prosecutors from blogging — at least about specific cases, if not also the specifics of the job of being a prosecutor.

[E]xcept for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, [a prosecutor shall] refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. — Rule 3.8, Special Responsibilities of a Prosecutor, ABA Model Rules of Professional Conduct at http://www.abanet.org/cpr/mrpc/rule_3_8.html (last visited February 25, 2007).

We could make an argument either way on this. In particular, we could argue that no Rule of Professional Conduct may trump the First Amendment. That’s not true, though: all sorts of things occasionally trump the First Amendment. When dealing with commenting upon legal cases, the First Amendment often gives way to other considerations, not the least of which is a defendant’s right to a fair trial.

We might also argue that when the press misrepresents policies, positions, or acts of the District Attorney, they have a right to rebut. However, there are several reasons not to accept this.

First, why should DAs have a right to rebut? To a certain extent, what the public thinks of DAs is irrelevant to the performance of their public service. A DA’s job is to prosecute crimes by presenting evidence in a court of law — not in a newspaper — so that an impartial jury can decide whether the individual charged with crimes is guilty beyond a reasonable doubt.

Courts of law have specific rules regarding what kinds of evidence can and cannot be presented to the jury. These have evolved over literally hundreds — and conceptually over thousands — of years, as we’ve learned that some kinds of evidence tend to prejudice people and result in too many innocent people being convicted. Newspapers do not have these same restrictions. Allowing prosecutors to comment about cases in newspapers — even “to correct” what they feel is an incorrect report — risks poisoning the minds of jurors or potential jurors.

But what if false reports by newspaper reporters cause people to distrust prosecutors? Whether the public likes — or even trusts — the DA is irrelevant to their jobs. In fact, one could argue that a healthy amount of skepticism is a requirement for the proper pursuit of justice. Isn’t an accused person supposed to be considered innocent right up until the minute he or she is proven guilty beyond a reasonable doubt? Jurors are not supposed to trust District Attorneys; they are supposed to doubt them!

Second, to the extent reporters get it wrong, prosecutors have the ability — as any other person — to set things right with either the reporter or the newspaper. Frankly, from what I can see, newspapers are typically friendly to prosecutors and police, as are most other Americans. If anyone gets short shrift in the news, it’s usually an accused person. If attempts to “set the record straight” fail, it seems to me that prosecutors can handle things the way the defense has always had to do it: put on your best case in court, then hope and pray that a fair and impartial jury will do their job in evaluating the evidence.

At any rate, as San Francisco’s Public Defender Jeff Adachi put it, “I think as time goes on, we are going to see more blogging [by prosecutors].”

We can only hope that their activities don’t lead an already prosecution-friendly public to put even more innocent people in prison.