Go Back to the Shelf

January 31, 2011 § 1 Comment

Remember when you would read a book, and, every now and then, you had to look in a dictionary to find the meaning of a word?

Similarly, remember when you had to look something up in an encyclopedia in order to understand references in those same books?

You don’t read enough of those books anymore. They are out there, and they want you back.

Legal Homeopathy

January 31, 2011 § 1 Comment

In the Criminal Defense Lawyer realm, there are those who seek to deal cases even without reviewing the evidence. The same folks waive preliminary hearings without a thorough review of the charges and the testimony supporting them. The excel, however, at selling their ideas–particularly to needy and desperate clients.

They are the homeopathic practitioners of the legal world. They provide a purported cure without science, logic, or investigation. All through good salesmanship.

The Pro Se Creationist

January 29, 2011 Comments Off

I do so enjoy the arguments of those who insist on teaching the “science” of creationism in public schools. It’s all fun and games until someone files a lawsuit. In the great state of Pennsylvania, Thomas Ritter does just that.

After reading the complaint (below), I recommend Thomas forget about the science curriculum and focus on honing his own grammar skills. Note that he publicly touts himself as being able to write well. If we ignore his problems with subjects, predicates, complete thoughts, and prepositions, I agree that his writing is brilliant. It’s not completely his fault. Lehigh University bears some of the blame. Plus, with such a long and detailed 2 page brief, we can’t expect him to endure 1 minute of proofreading.

Besides, his filing just gets read by some judge at the courthouse. It would never be read by the general public. Right?

Mr. Ritter obviously has a fool for a client. How many lawyers do you suppose passed on this gem of a case?

Alas, I must concede that he is a veteran of the Armed Forces (PA Air National Guard). Yep, these are my peeps.

H/T to PZ Myers for alerting me to this case.

Sometimes, The Greatest Gift is a Kick in the Pants

January 28, 2011 § 3 Comments

Chicken fried steak covered with gravy, corn (...

I don't care what you say. Chicken fried steaks consist of atomic creme-de-la-creme. Image via Wikipedia

In the last few years, I’ve noticed a sharp increase in the number of folks who are incapable of accepting direct and candid ideas in opposition to their established point of view. People are incapable of accepting a kick in the ass when it is deserved and needed.

As a supervisor at a military public defender shop, my personality was polarizing. Some folks appreciated the fact that I was blunt. Others, not so much. I am this way because of the appreciation I have for the folks who showed me the same courtesy. I don’t remember the Mr. Nice bosses I’ve had. They were flaccid and ineffectual, and nothing remarkable came from their safe leadership. I do remember the ones who put a boot in my ass on occasion.

I needed it. I admit. Like most humans, I have a predisposition to being a lazy procrastinator. It comes from the fact that god put all the high-performing atoms into waterfalls, beautiful mountains, and chicken fried steak. All the underperforming and hiccuping atoms were relegated to human purgatory. It’s his way of punishing them for too much hedonistic whoopee when the Earth cooled.

If you were offended by my “human purgatory” comment, you may want to stop reading now. This post isn’t for you. We often consider ourselves, as humans, to be residents on the shores of Lake Wobegon–perfect and equally exceptional. We are not. Consider what we do to beautiful, tasty food when we eat it. When we are done, it comes out a pungent, disgusting mess. We have that effect on most of what we consume–literally and figuratively.

But I digress…

The problem now is that nobody thinks they are worthy from the boot-to-derriere treatment. Everyone began as a child, and lately all children are considered special. Then, growing up, the same children learned that they are the future and that they are all winners. Finally, as adults, they retreated into their Facebook and Twitter caves where admission was only granted to those who agreed to become members of their personal cheer squad.

They are never to blame. It’s always that jerk who supervises them. When he tells them they aren’t performing, they determine that his standards are too high, or he is part of a larger conspiracy against them. When they face repercussions for repeated absences, the big bossman lacks sensitivity to the things that are truly important in life.

Want to know what humans desire most in life? It’s not money, or a big house, or a BMW, or a PlayStation, or that Jenn-Air range, or the Caribbean cruise, or a piece of ass from the cute waitress at the diner. It’s none of those. What is it then, you ask?

Exceptions–tailored to fit only them.

They want an exception from succeeding through hard work. They want an exception from being at the job when everyone else schleps their oversized ass through the door. They want mulligan after mulligan–even though their peers aren’t entitled. They want, most of all, an exception from devoted accountability.

We must learn to appreciate those who are accountable for us–especially when they are openly and harshly so. They do it because, regardless of our vocation, setting high standards is the right thing to do. To do otherwise is an injustice to any consumer that relies upon our product. To do otherwise allows our underperforming atoms to continue disappointing the god of physics.

For those of us who choose to depart from the world of oversight, the seeking of an occasional kick in the pants must come from within. It hurts to read about somebody who is doing something for a client that we should do, but aren’t doing. We feel like crap (or, we should). We must force ourselves to hear about people who do this job better than us, and we must hear the voices of those who demand accountability among our profession–regardless of the hit to our emotions or ego.

When you get pissed off because of criticism, get pissed off at yourself, not at the person delivering it. Get pissed off because of the time wasted on inconsequential bullshit when it could have been used on people paying you to save their life. Get pissed off when you realize that a bit more legal research could have suppressed that confession. Get pissed off when you fail to achieve the standards that people need you to achieve. You know you’re wrong. We are all wrong at some point. The question is, are you capable of catching yourself being wrong or accepting others calling you out for it?

Why the rant? Here lately, all of my new clients want my help to correct previous legal actions. They need the help because their previous attorney at court-martial or administrative proceeding screwed them. Rather than taking the harder steps, the lawyer sought the easier slide. Battles that should have been fought were bargained. In some cases, they were told that fighting would only delay the inevitable. It makes me sick.

If you don’t want to do the job, get out. Didn’t do well in law school? Don’t expect firms to suffer your excuses. Don’t like the job you are in? Quit. Want a better work/life balance? Then give up the clients and take a cut in pay. Your clients don’t pay you to ferry the kids to Camp Snoopy at Worlds of Fun. They pay you to work your ass off for them. If that gets in the way of being a soccer coach, then don’t take the case. Make a choice. Either way, there are negative consequences. If you want to get rich AND be a full time parent, pump-out octuplets and call Discovery Channel.

A few weeks ago, Dan Hull told me, in part, “You’re wasting your life.” It made me think. It made me work harder. It made me recommit to the things that are really important. Had I condemned him for the comment, its intent and purpose would have been wasted.

Guess what. You’re probably wasting your life, too. Get off your ass and try to be exceptional. You’ll probably fail, but it’s not about where we are trying to get. It’s about how we try to get there.

Silly, Silly Law Students

January 28, 2011 § 2 Comments

Thanks to Scott Greenfield, we now have a better understanding of some who study the law at a “Massachusetts law school.”

Law students amuse me. When I was a law student, I’m sure I amused several practitioners, too. This isn’t a bad thing. It’s just the way it is. Law school is just a phase. In time, it will pass.

You know what I mean–the ivory tower perspective, the rosy view of the application of law, the feeling that they are better advocates than 95% of experienced practitioners (with the other 5% consisting solely of family members, close family friends, and law professors).

I don’t think twice when I hear about the antics of most. After all, they are still within the ABA-mandated steeping process. Before passing the bar, they are incomplete, and I never give credit for incomplete work.

Some, however, make a lasting impression, and this isn’t a good thing.

Ray Wolfe is one. Apparently, he attends a “Massachusetts law school,” and he has a big problem with Missouri judges. While at his home in Springfield, Missouri, he received several traffic citations. Owing to the fact that he must return to Massachusetts for school, he requested a continuance in his matter. He used persuasive, concrete language in his request.

To let you know I use the word “Judge” lightly in your case. Your asshole (traffic cop) wrote me that ticket, committing constructive treason, and perjury of his oath, as you are about to do. If I come down there you damn sure won’t want me in your courtroom. I know you have people in the courthouse guarding your sorry “Communist” ass. I told you I am currently “Out OF STATE” and I demand a continuance. This is no longer a request!

I left that State to get the education so I to be able to fight on there playing field. (In the courtroom) instead of where I have been trained to fight (On the Battlefield) which may be where this winds up if you keep your shit up.

The State of Missouri has failed to provide me with justice, with the securities provided in the Missouri, and United States Constitution, and I will not pay for any injustice in Missouri “Unless it is in BLOOD.” So the question is? Do you want to meet me on my turf “The battlefield” —JUDGE. You best leave me out of that State until I get ready to return.

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Payment, Texas Style

January 27, 2011 § 2 Comments

My New Armadillo says "Vote No on stupid changes to TX PR Rules."

I’m a lawyer, so I charge for my time. Mark Bennett knows this.

So, he paid me for pimping the “Vote No in Texas” perspective by sending something from his illustrious home state.

I was hoping for something of the BBQ variety, but then this arrived at my doorstep. It is neither cuddly nor tasty, but it is doing a wonderful job of aerating my lawn. Thanks Mark.

By the way, seriously, vote “no” on the stupid Texas Professional Responsibility proposed changes. Go. Vote. Now.

Nothing says Texas like an Armadillo, and they hate the proposed changes, too.

Vote No In Texas

January 26, 2011 Comments Off

Medium Flat Rate Boxes and Flat Rate Envelopes

Flat rates. They work for the Postal Service and CDLs. Image by Aranami via Flickr

This is a horribly belated post. I meant to write it a week ago, but I kept getting sucked into my day job. Damn job. I hope Mark Bennett finds it in his heart to forgive me.

Texas is attempting to amend their rules for professional conduct to eliminate the ability of lawyers to charge flat fees for cases.

Criminal Defense Lawyers are hit particularly hard by this, as many of us manage our practices by using a flat fee structure.

Here’s how it works:

  1. Client has a problem.
  2. Client calls a lawyer.
  3. The lawyer analyzes the problem.
  4. The lawyer quotes a fee. This fee is based on the complexity of the problem, the time necessary to solve the problem, and the experience of the lawyer. The lawyer then uses this information to quote a flat fee to handle the problem.
  5. The lawyer is paid upfront, and the fee is considered property of the firm at that point.
  6. The lawyer is obligated to help with the problem as contracted.
  7. The client and lawyer never talk about money again, unless a matter arises outside of the contracted obligation.
  8. The funds are deposited in the lawyer’s operating account and are not held in trust. They are considered to be earned at that point in exchange for the obligation of the lawyer to continue working on the case until a conclusion is reached.

This is empowering to both the client and lawyer. The client knows that their case will be handled from beginning to the end. The client also knows that he/she will not have awkward conversations about money with the lawyer. The lawyer gets to move forward with the confidence that they can handle the case completely and without distraction. Managing money is made easier, and the lawyer can devote more time to cases instead of money management.

Don’t try to tell me that this is rectified by using an IOLTA. IOLTAs are a pain in the ass and require time that is better spent handling a client’s case. IOLTAs may work great for folks with large staffs, but the average CDL does not have a large staff.

For a majority of CDLs, flat fees are the bread and butter of our practice.

Now, Texas wants to take this away. I’m not a Texas lawyer, but I am a Kansas lawyer, and Kansas tends to follow trends from larger, more populous states. For this reason, I watch with concern.

Proponents of the change are largely followers of the billable hour. None are criminal defense lawyers.

Don’t believe me? Check out the following:

Mark Bennett: Here, here, here, here, here, here, here, and stay tuned, because he often posts updates on the referendum.

Scott Greenfield: Here.

Brian Tannebaum: Here. (this post has a particularly poignant example of a CDL charging a high fee for a case vs. a personal injury attorney taking their 30% contingency).

Jeff Gamso: Here.

Gideon: Here.

I’d love to speak at length on this, but my current caseload has forced me into a bit of a blog hiatus. Here’s the bottom line: Flat fees are fair and, in most CDL cases, the right way to do business.

So, to all my Texas lawyer friends: please vote no. Do it for those guys out there who really want to help their clients.

Sex, Swingers, and Porn Stars in Military Justice

January 24, 2011 § 4 Comments

You never quite know where someone's dogtags have been. Image via Wikipedia

I suppose I have your attention now. For those who seek to condemn me for this post, please refer your negative comments to Charlie Thomas, the Felonious Munk. It was a dare, and a double-dog one at that. If you have positive comments, however, forget sending them to Charlie, keep sending those to me.

Charlie was chatting with me the other day about the conviction of Air Force Technical Sergeant (Tech Sgt) David Gutierrez. Who is he? Well, you may be thankful that you never met him at a party.

An Air Force sergeant convicted of exposing multiple sex partners to HIV at swinger parties was sentenced Wednesday to eight years in military prison and will be dishonorably discharged after serving his time.

A court martial judge earlier found Tech. Sgt. David Gutierrez guilty on seven of eight counts of aggravated assault and violating his commander’s order to notify partners about his HIV status and usecondoms. The judge also convicted Gutierrez of indecent acts for having sex in front of others and eight counts of adultery.

The judge, Lt. Col. William Muldoon, delivered the sentence after a brief hearing, during which Gutierrez had begged between sobs not to be discharged so he could keep the military medical benefits he will now lose. Gutierrez also will be reduced to the lowest enlistment rank while serving out his military confinement.

Charlie really doesn’t have a problem with the aggravated assault and violating the order to inform sex partners. He gets it, and I get it too. Gutierrez was, after all, slinging his body fluids around someone’s living room with multiple partners without their knowledge of his loathsome disease.

Really, Charlie’s consternation arises from the Adultery charges. It seems strange that a crime should result from a consensual, adult act. What’s up with the bedroom police? (or, in the case of Gutierrez, the Bedroom/Living Room/Spare Room/Utility Room…..well, you get the point….police?).

What is adultery in the minds of the military? Well, we must look to Article 134 of the Uniform Code of Military Justice. Article 134 is a catch-all for any conduct deemed “prejudicial to good order and discipline” or “service discrediting.” That doesn’t leave much to the imagination, does it?

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A Frustrated Outburst

January 14, 2011 Comments Off

I apologize for this, a brief, frustrated outburst as a result of interaction with a couple of attorneys who are failing their clients. Actually, no, I don’t apologize. I actually hope they read this post, realize that the boots fit, and slip-on the footwear that is precisely tailored to them.

Touch each client’s file every day. Open them. Think about the next deadline or task. If you don’t, your client will suffer when you (invariably) forget they exist.

Your duty to be complete and correct outweighs your desire to become rich and/or catch the afternoon matinee.

Lawyers Fighting to Help You With the Tax Man

January 14, 2011 Comments Off

I’m going to give free advice.

As you know, I hate giving free advice. Us lawyers fall prey to folks wanting free advice almost every day we work. In this case, however, I give it, and I give it gladly.

If you are a member of the armed forces (or retiree) and you have an ID card to prove it, go get your taxes done for free.

I’m giving free advice about free stuff. Double bonus.

Each Winter/Spring, US military installations across the globe open tax centers for military ID card holders. The centers are staffed with trained tax preparers and VITA volunteers, and they do a fantastic job.

Don’t believe me? See what Colonel Charles Williams said about the tax center at Fort Leonard Wood, Missouri (a relatively small military installation).

“We save each Soldier an average of $200 in tax preparation fees,” said Col. Charles Williams, Fort Leonard Wood Garrison commander.  “ That is one of the many benefits that Soldiers receive. The Staff Judge Advocate office has a phenomenal office and done a fantastic job both with the claims process and will do a great job with this.”

See that whole thing about it being at the Staff Judge Advocate Office? Yeah, it’s run by lawyers. In fact, one manages the center full-time, and he’s been to several courses to learn about 2010 tax rules and laws (all in anticipation of his leadership of the tax center). Try finding that at your local H&R Block. Ask any of the lawyers with whom I associate; this is a huge benefit.

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Going Off The Deep End

January 13, 2011 Comments Off

Today, someone told me that I’m going off the deep end.
That’s fine.
I heard the water is warm.

Predatory Lending Association

January 12, 2011 § 2 Comments

Thanks to the military Scott, here is a wonderful parody on the predatory lending scum that camp outside the gates of every military installation. I spoke a while ago about folks who prey upon military goodwill, and it still ticks me off. (not to mention the thousands of non-military folks who also fall prey to these jerks).

The Predatory Lending Association (PLA) is dedicated to extracting maximum profit from the working poor by increasing payday loan fees and debt traps. The working poor are an exciting, fast growing demographic that includes: military personnel, minorities, and most of the middle class.

Enjoy.

 

The Predatory Lending Association

Crawling Out of the Woodwork

January 12, 2011 Comments Off

For the last couple of weeks, military news has been abuzz regarding Navy Captain Owen P. Honors’ racy videos produced during his tenure as Executive Officer (XO)(second in command) of the Aircraft Carrier USS Enterprise.

While the Navy mulls what to do with the skipper of the USS Enterprise following revelations he was behind a series of raunchy, homemade movies several years ago that poked fun of women and gays, critics and supporters of Capt. Owen P. Honors are weighing in.

The videos — which were laced with obscenities and depicted two women showering with each other and men feigning masturbation — were made in 2006 and 2007 while the ship was deployed for Operation Enduring Freedom. Honors was the ship’s executive officer at the time, but he was assigned to the Enterprise as captain last year.

The videos, produced aboard ship using Navy equipment and broadcast to the crew, were reported recently by The Virginian-Pilot newspaper…

At this point, the Navy isn’t really mulling over its options. Capt. Honors was fired from his latest leadership position as Commander of the USS Enterprise for the 3-4 year-old videos. His career is done. Kaput.

Oh, he may still get smacked a bit more. Perhaps a letter of reprimand will be the icing on the cake. After that, the story moves, as those before it, into obscurity. This is not “Tailhook,” despite the efforts and desires of various pundits.

I didn’t post on this story initially because it didn’t interest me. From a legal perspective, it’s pedestrian. We merely have some wonderfully entertaining examples of conduct unbecoming an officer.

What interests me is not the video itself or the punishment exacted upon Capt. Honors. Instead, I’m fascinated by the flurry of individuals and groups emerging from their holes to comment.

SLDN

Let’s start with SLDN. The Servicemembers Legal Defense Network (SLDN) evidently hates fraternity houses.

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Tremble for Yourself

January 7, 2011 § 1 Comment

Weep for yourself, my man,
You’ll never be what is in your heart
Weep Little Lion Man,
You’re not as brave as you were at the start
Rate yourself and rake yourself,
Take all the courage you have left
Wasted on fixing all the problems
That you made in your own head

But it was not your fault but mine
And it was your heart on the line
I really fucked it up this time
Didn’t I, my dear?
Didn’t I, my…

Tremble for yourself, my man,
You know that you have seen this all before
Tremble Little Lion Man,
You’ll never settle any of your scores
Your grace is wasted in your face,
Your boldness stands alone among the wreck
Now learn from your mother or else spend your days
Biting your own neck

But it was not your fault but mine
And it was your heart on the line
I really fucked it up this time
Didn’t I, my dear?

–Mumford and Sons “Little Lion Man”

I didn’t know Bill Zeller, the person, and I never will. On Wednesday, he died as a result of his own suicide attempt. A graduate student at Princeton University, the Daily Princetonian reported on the act.

Bill Zeller, a fifth-year graduate student in the computer science department, died Wednesday night at age 27 as a result of injuries from a suicide attempt.

Zeller was found in his University apartment by Public Safety officers at about 6 a.m. Sunday, shortly after he attempted to take his own life. Brain damage due to oxygen deprivation left Zeller in a coma at University Medical Center at Princeton until the evening of Jan. 5, when he was removed from life support.

He left behind a 4,000-word suicide note, which began: “I have the urge to declare my sanity and justify my actions, but I assume I’ll never be able to convince anyone that this was the right decision.” In the note, Zeller described how repeated sexual abuse as a young child haunted him for the rest of his life, causing regular nightmares and limiting his ability to connect with others.

Smart kid. He had to be. He was at an extremely prestigious university, and he established himself well as one of computer programming’s up-and-comers. The proof was in the pudding.

Bill’s note tells quite a story. I found it reproduced in its entirety at several locations, including Gizmodo. As I said in the beginning, I did not know Bill as a person, but I know his condition. I’ve seen it in client after client. They became my clients when the stress of their daily existence boiled-into outward manifestations–mostly as a result of years of unhealthy conditioning.

Nobody wants to commit suicide. Nobody in their right mind, that is. I read some of the comments left about Bill’s suicide from sanctimonious pricks who are quick to condemn, saying the usual comments about selfishness and how nothing excuses suicide. They are easy things to day, if you’ve never walked a mile in that man’s shoes.

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Change of Pace – CANdYRAT

January 7, 2011 Comments Off

I have about 5 mainstream MU posts in the wings, just haven’t had the time to finish them. So, I thought I’d depart from the norm and share a little bit.

Sharing is good, right? OK, unless it’s with prosecutors. I don’t even share my fries with them.

So, here’s a bit of what clogs my 2400 baud modem when taking a break from the day job.

The folks at Candyrat Records never cease to amaze me with their constant stream of great stuff. While you’re there, check out the outstanding solo projects by my fellow Kansas native, Andy McKee.

As much as I wanted to put one of Andy’s riffs on here, I had to go with this duo. Don Ross and Jimmy Wahlsteen transform a Canadian street into a recording studio. Oh, to be strolling past on that day…

When Do I Get To Tell You My Life Story?

January 5, 2011 § 3 Comments

Criminal defense attorney Earl Rogers (1870-1922)

I wonder if Earl Rogers gave free consultations. Image via Wikipedia

I’ve talked about payment for legal services before (citing Scott Greenfield and Brian Tannebaum), and Rick Horowitz wrote a post over a year ago about clients calling to second-guess their attorney. I thought I’d shift just a bit from these and talk about everyone’s favorite topic, the free consultation.

When I was still the Senior Defense Counsel at Fort Leonard Wood, I assigned a lower-level matter to one of my Defense Counsel. She reviewed the case and presented the client with her plan. He stated that he wanted to get a second opinion from a civilian lawyer (as is his right). No problem. It’s his future, and you can’t blame him for being careful. After all, the average uniformed Defense Counsel has less than 2 years of experience in criminal litigation, and seeking the advice of more experienced counsel is a wise move.

Two days later, he returned to her office with a notepad. On the notepad were detailed notes from his hour-long conversation with Mr. X, a reputable, experienced attorney in the local area. Mr. X offered to handle the matter for $2500, a very reasonable fee for this particular case.

The client looked at his assigned (and free) government attorney and said “this is what he told me he’d do, and I want you to do it” (or words to that effect). You see, Mr. X never stood a chance. This kid never intended to pay a dime for representation. He just wanted to get his free consultation.

What the hell is a free consultation?

Here, this very experienced attorney allowed the kid to sit in his office for an hour, pepper him with questions, and outline the entire process from start to finish. All the while, copious notes were taken. For his time, Mr. X received $0.00. His idea of a free consultation must be taking the time to gingerly guide the client through the process, explaining every nuance of how fees would be earned, and demonstrating how a favorable outcome is made more probable through select strategic movements. Unfortunately, assuming he qualifies his time at $250/hr, he just lost $250 and an hour of his life.

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Out to Find Some BS

January 2, 2011 § 1 Comment

Penn & Teller: Bullshit!

Image via Wikipedia

Rick Horowitz recently had an electronic conversation with me about the show “Penn and Teller: Bullshit.” I’m a huge fan of the show for a lot of different reasons.

Today, I want to highlight a few episodes worth watching. You can find all seasons of the show on Netflix, and individual episodes are available for download on Amazon. Here are the ones that I think are most applicable to the CDL community.

  • Death Penalty. Season 4, episode 3.
  • Lie Detectors. Season 7, episode 5.
  • Criminal Justice. Season 8, episode 7.
  • Vaccinations. Season 8, episode 10. (OK, not directly involving criminal law, but people who argue against vaccinations really piss me off. Don’t even try to comment on this post with your Jenny McCarthy propaganda. In fact, just thinking about advising parents not to vaccinate their children really torques me.)

Here are three YouTube clips. The first is a Death Penalty clip (it’s pretty powerful), and the following two are the entire Vaccinations episode. Particularly compelling is the opening “bowling” sequence of the Vaccinations episode.

Note: There are numerous F-bombs and some nudity.

First, a little bit about the Death Penalty:

Part I of the Vaccinations episode:

and, Part II of the Vaccinations episode:

Where Am I?

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