Older Lawyers, Be Transformational Leaders with GenY

February 28, 2012 § 6 Comments

An undergraduate psychology class taught me that good leaders should be “transformational.” If I remember correctly, it means you should change your management approach to address any and all diverse leadership challenges.

Lately, many of you complain about the state of GenY lawyers, and they present a unique leadership challenge. However, I know you’re up to it.

GenY lawyers are unique. You can’t treat them the same as previous generations. Fear doesn’t work. Direct mentorship falls short. Bullying is a capital offense in their minds. They require you to think “outside of the box” and expect you to be a “thought leader.” They require incentives (and sometimes bribes) to accomplish most tasks. You, as the leader, must adjust.

To help (as you know, I’m always here to help), I present you with an incentive that should do the trick for 98% of your GenY motivational needs. It is attached below. You’re welcome. Oh, and don’t be stingy. GenY isn’t waiting for you to find excellence and merit. Nope. This will be needed for even the most routine tasks.

Finally, don’t forget to regularly exclaim how you find them to be “totally awesomesauce.”

With apologies to the wonderful folks at Pizza Hut.

More About Valor

February 27, 2012 § 5 Comments

Before I begin, a quick recap on what Websters says about valor:

strength of mind or spirit that enables a person to encounter danger with firmness : personal bravery

This morning, I received a comment from SHG regarding his hesitation in addressing the Stolen Valor Act:

Never having served, and therefore by definition never having been awarded a military honor, I felt that my opinion on the Stolen Valor Act was somewhat compromised.

First, let me state that I have never committed an act that demonstrates valor. Sure, I received a few medals, but they were termed as being for “merit,” at best. Websters defines merit as follows (edited to omit the definitions of merit that do not apply in this case):

character or conduct deserving reward, honor, or esteem

I never did anything deserving or fitting that definition. Yet, I received two Meritorious Service Medals (among others). They are merely proof that I did my job, rose to the rank of Major, and that the Army’s perception of merit has been severely eroded. They sit lumped in my sock drawer with the other awards and devices I received.

But, to my original point. Look back at the definition of “valor.” Does it say anything about military service? No. Hazardous duty as a police officer or firefighter? Nope. Particularly noteworthy service during clandestine operations? Not even close. A 7-year-old Cub Scout is just as capable of displaying valor as anyone else. They are also fully capable of developing their own perception as to what constitutes valor. By extension, so is SHG.

This reminds me of a problem in our nation for the better part of 25 years. Any criticism of something that purports to help service members is interpreted as a slight upon the same service members. The most horrible tag we can give someone in this country (aside from being racist) is that they “don’t appreciate service members.”

Things that purport to help service members and veterans can still be completely asinine. They can still lack logical foundations. They can be stupid. The same goes for members of the military and veterans. Service does not inculcate superior wisdom or abilities. How you regard someone should be based upon who they are, and what they’ve done is but a small piece of that. Never be afraid to call a spade a spade.

Consider now the name of the act: The Stolen Valor Act. That sounds terrible, doesn’t it? They are stealing the fact that someone else has done something brave and heroic! They are taking credit for amazing acts in the face of unbelievable odds! They are taking what someone else earned through bravery and heroism and claiming it for themselves! Wait. Perhaps the name of this act is hyperbole.

As I stated previously (which I stated at the spur of the moment before going to bed last night), you can’t steal valor. Look at the definition again. You can’t steal that. Just like you can’t steal when I’m sad, or that you can’t steal the fact that I graduated from college. It’s impossible. It is an idea. It cannot be stolen.

So, how do we appropriately name this act?

The Lying About Military Service, Falsely Claiming the Awarding of Military Honors, or Wearing of Unearned Military Ribbons and/or Devices Criminalization Act.

How about that name? That’s got you punching-mad, doesn’t it?

Oh, not so much? But, you’d agree that it is a much more appropriate name, right? After all, that’s really what is being criminalized–someone lying about service and/or wearing military doodads.

Are we really that protective about military flair? The type of stuff I have wadded in a corner of my sock drawer? Is this an aggravated form of lying? Isn’t all lying bad?

So, how about the awards the Boy Scouts have regarding Valor (awarded scrupulously when someone saves someone else’s life or commits a heroic act). How about claiming to be an Eagle Scout? Girl Scout Gold Award? Police service? Service as a firefighter? Heroic acts as a police officer or firefighter? Service as a smoke-jumper?  AV preeminent on Martindale? 10.0 on Avvo? Top tomato project at the 4H fair?

Oh, the slippery slopes we slide upon.

Frankly, I think some folks have been doing an admirable job in exposing and humiliating the fakers. Believe me when I say that Veteran networks across this nation are thick, and when they discover a liar and faker, they let him/her have it. This is a very efficient, self-policing community. Thanks to the advent of databases and the internet, their job is infinitely easier.

They won’t benefit from over-criminalization. Nobody ever does.

You Can’t Steal Valor

February 26, 2012 § 1 Comment

Via Wikipedia

You can’t steal valor. It is impossible. Consider what Webster’s dictionary says about the word Valor:

strength of mind or spirit that enables a person to encounter danger with firmness : personal bravery

You can’t take it from someone, just as you can’t take their wisdom from them.

You can’t take a bit of valor from the government, because it, as an entity, has none to give.

Getting a medal doesn’t give valor. It is simply a symbol in recognition of someone with perceived valor.

If someone wears a medal, but never earned it, they are not imbued with valor. They are who they are. No piece of cloth or plated piece of metal changes that.

The vast majority of people who have valor never receive recognition for it. That’s just life.

So, Stolen Valor Act. I don’t like the law. I wish it were gone. It doesn’t help.

I like to think that those who have legitimately received medals for valor are deserving.

I also know that those who falsely wear them will be revealed, humiliated, and marked as being the farthest thing from a person with “valor.” These situations police themselves. Organizations and groups exist to observe and investigate these things. They don’t need the government. They don’t need the act, and there are better things for our government to be doing.

I know what they meant by the Stolen Valor Act. The thought is nice, and a lot of veterans I talk-to are grateful for the efforts. Yet, it is not worth the 1st Amendment slippery slope.

Reclaiming Manhood: Thank-You Notes

February 26, 2012 § 4 Comments

Real men write thank-you notes. The notes are handwritten. They are put into a mailbox after affixing correct postage. They are sent within 3 days of the thank-you-able event.

You keep a stack of them handy in your top desk drawer, ready to spring into action when needed.

No need to tell me I’m a dinosaur and dwelling in the last century. On this point, I am immovable.

Thanks!

Getting a Masters Helped Me A Lots

February 24, 2012 Comments Off

Oh, Norwich University. You have such a wonderful history as the birthplace of the Reserve Officer Training Corps. You’ve existed for nearly two centuries. I realize that things get tough, and you’ve embraced online degrees to account for hard financial times. I understand. I really do.

However, could you have at least put Jennifer (who I assume is a fine nurse) in touch with someone in the English department?

Also, out of respect for Jennifer, I’ll refrain from my usual penchant to embrace obvious double entendres.

Inserted here for informational purposes only (just in case Norwich decides to get cheeky with me).

Manning Arraignment

February 22, 2012 § 2 Comments

Some of you have asked for a brief description of what is happening with the US v. Manning court-martial.

I’ll let you in on what I suspect. Please note that I have never talked to either counsel or reviewed evidence. I base my assumptions on what I’ve seen in the news and my own experiences with the court-martial process. In no way is it comparable to the insight possessed by his current counsel. They know tons more than I do.

This week, he is being arraigned. What is that, you ask? I could tell you, but, instead, I’ll show you by providing an annotated script from the Military Judges’ Bench Book (PDF format). My assumptions are in red.

MJBB Arraignment

As for future motions, I expect the following, at a minimum:

  • Speedy Trial
  • Illegal Pretrial Punishment (for the stuff that happened at Quantico)
  • Compel Discovery (I can’t imagine how horribly voluminous this must already be)
  • Unlawful Command Influence (for comments by the POTUS some months ago)
  • Sanity Board (under Rule for Court-Martial 706) for both his current mental state and his mental state at the time of the alleged offenses.
  • Compel the production of witnesses.
  • For a new/reopened Article 32 Investigation.
  • Requests for Depositions
  • Suppression (potentially of a variety of things)

And Today in Spam Mail

February 22, 2012 Comments Off

Spam mail is bad.

Spam mail from my potential clients is worse.

Spam mail from my actual clients is worseriest.

Today, I received one from a relatively intelligent young man. The title exclaimed:

I am finally became Boss!

Fantastic. Congrats, Boss.

Help a Servicemember / Military Retiree this Tax Season

February 21, 2012 Comments Off

Tell them they can have their taxes done for free at their nearest military installation. H&R Block and Jackson Hewitt like to tout their discounts, but discounts hardly amount to free. I wrote about this before. Most installations advertise these services online.

They assist with all types of taxes, even itemized returns. The only thing they do not prepare are business taxes. All they need are a few necessary tax-related documents, and the service is available to Active Duty, Retirees, Reservists, and National Guard.

A military lawyer, specifically trained in tax law, supervises each installation’s tax office and is available to assist all of his/her VITA-trained volunteers and employees. Based on my research, this is better than any Block or Hewitt branch office.

It pains me to see servicemembers paying money for tax preparation. Please spread the word.

Reclaiming Manhood: Embracing Your Inner Griswold

February 21, 2012 Comments Off

The  vast majority of you have seen one of the “Vacation” series of movies. You know, the ones starring Chevy Chase as Clarke Griswold, husband and father of two.

Clarke means well. He wants to do great things for his family, but his grand plans regularly fizzle into disappointment and disaster. He overthinks everything. As each carefully-layed plan crumbles, he begs for more time and patience in hopes that everything eventually comes-together. It does…sort of.

Every husband and father has a bit of Clarke Griswold in them. The difference is whether we recognize it or not and the amount it impacts upon our families. By the age of 30, most of us have had at least one major Griswold moment. By 40, we’ve had at least two. At 50, the number is at least 5. Then, the rate begins to taper as we start losing ambition and gain wisdom.

Real men recognize their Griswold moments. Even better, we recognize when they might happen and make the decision one of calculated risk. Most of all, we are able to laugh at ourselves during these moments.

So, just to show you that I recognize my own shortfalls. Here’s my biggest Griswold moment.

Look close. That's me in the picture. I'd print what I was saying at the time, but it's not appropriate for general audiences. Remember this, fair reader, an RV is a box you park in the woods and throw money into.

Using this truck/trailer combo, I almost killed my entire family. I heard a lot of “can we just get a hotel room?!” and “Noooooo! I don’t want to go camping.” and “I don’t like that trailer. It makes daddy say bad words.”

I learned one valuable lesson from this experience: The road to hell is navigated by fathers in RVs.

It’s gone now, replaced by a Subaru.

Griswold moments are characterized by a few important factors:

  • Griswold moments cost money, and more than just a trifle. Going to a bad movie is not a Griswold moment. Buying a Harley with a sidecar to hold a baby seat is always a Griswold moment. Know the subtle differences.
  • It impacts others (especially those close to us) in a negative manner. We severely underestimate the negative potential in the planning process.
  • While these moments are possible as a single male, they are extremely unlikely. The vast majority of potential Griswold moments require a wife and children.
  • Because we fell in love with our plan, we often wait until the suffering become unbearable before we choose to abandon it.
  • The time we escape our Griswold moment is more satisfying than the time we entered it.

Most Griswold moments involve recreation or leisure activities. We rarely take such chances in our professional endeavors. That doesn’t, however, mean it is outside the realm of possibility.

We laugh at our Griswold moments. I laugh about the RV now. I wasn’t laughing back then, but I am now. We shudder at the thought of our potential Griswold moments. Those make us cringe and suffer anxiety dreams. Let me give you a real example.

Shortly after leaving government service and embarking on my solo office boondoggle, an old buddy called and emphatically attempted to convince me to join him in a partnership. I declined, but the idea of having fancy letterhead with a couple of names on it was intriguing. It certainly seemed more cosmopolitan than my pathetic little solo world. I declined because I wasn’t sure about his ability to manage his own practice, generate income, and share his portion of the load.

At the same time, the idea of partnering with him was tempting from a prestige point of view.

We still talk. He didn’t have hard feelings about my rebuff. Now, his practice is suffering. For every $500 he generates, he spends $600. To pay bills, he accepted some freelance research jobs.

Now, I shudder at the thought that I could have been part of the misery. Had I entered the partnership, I’d be generating work in order to pay his bills. It gives me the willies.

Could this have been a Griswold moment? Let’s check.

1. Would it cost money? Absolutely. At the beginning of our discussions, I had no debt. He incurred approximately $20K from his solo startup costs (mostly in an effort to achieve search engine optimization and name recognition). Our first priority would be to eliminate those notes. This doesn’t even begin to address the costs of paying for his ongoing expenses.

2. Negative impact on others? At first blush, you may think that this is merely business and should be kept within the business. However, think about the second and third-order-effects. I’d be stressed. I’d be irritable. Knowing human nature, I’d likely have anger episodes at home. I like to think I can manage anger and frustration well, but you just never know. Is it worth the chance? Additionally, my take-home-pay would suffer due to his proclivity for spending cash. My practice is already modest. To make it more modest would directly impact my ability to buy baby a new pair of shoes. Yep, they’d suffer–and my current analysis may still fall short of what would have actually happened.

3. Married vs. Single. Obviously, the potential impacts to a married-with-children lawyer is well-established. Not as much for the single ones. After all, you can do just fine with a studio apartment, inflatable furniture, inflatable girlfriend, and crappy car. Risk tolerance for a bad partnership is much higher for the single guy.

4. Difficulty of abandoning. The deeper you go into that partnership, the harder it becomes to get out. I think of the book/movie A Civil Action. The movie does a good job of showing a prosperous practice that devolves into funding coffee purchases with sub-prime credit cards. That story still gives me nightmares. However, the deeper he went into his situation, the harder it became to extricate himself. Most of the time, it ends with rock-bottom. Had I taken the offer of partnership, I have visions of myself wearing a WalMart smock, running somebody’s purchases over the laser-thingie.

5. Satisfaction of the exit. I’ve never been in partnership, but I could sense the high one might achieve at the dreams of a successful one. You imagine being that guy with the BMW, snazzy suits, wife, mistress, girlfriend, big house, vacation house… The thoughts are intoxicating. Then, when it all goes to hell, I can’t imagine the relief one must feel when he/she exits a horrible, blood-sucking partnership and walks the other direction.

There you go. Griswold moment. Now, I’m not opposed to partnerships. Most seem to be successful and rewarding. However, a bad one can alter your life negatively with little or no chance of recovery.

The bad thing about this Griswold moment is the level of suffering that it causes. It’s more than that damned RV. After all, it eventually was just parked in the driveway, gathering cobwebs. You can’t just park your practice and forget about it. Too many people count on you.

So, as you’re blinded by thoughts of a rich and famous partnership, do yourself and your family a favor. Just buy an RV.

From Enlightened Advocate to Fool for a Client

February 17, 2012 § 6 Comments

I love jury nullification. It’s one of those things that makes being a criminal defense lawyer a lot of fun. It is a time when ordinary citizens can take charge of a proceeding and let their views, their opinions, and their sensibilities override the law, when necessary.

Of course, let’s not forget that all good things can turn into bad things, depending on your perspective. Plus, whether something is good or bad depends largely on the palate of the individual tasting it.

Nonetheless, I like jury nullification. It is a tool that a CDL can use if the circumstances and facts warrant it. Let me say that again: it is a tool. Not all tools are useful all the time. We use them when they are necessary. At the same time, I think it is also useful if ordinary citizens are aware of the various tools available to them when discharging their civic duties.

Sure, jury nullification is distasteful to some. They want to limit the scope of jury discretion to just the facts and whether those facts fit neatly into the applicable laws. I understand those arguments. I don’t agree, but I understand. My point is that we call for juries to give both the facts and laws a sanity-check, and do what they believe is right under all the circumstances. If it were merely a matter of fitting facts to law, then we’d place a specially-trained computer in the jury box and see what it spits-out after each side has a turn at the keyboard.

Enter Julian Heicklen, a 79-year-old professor (emeritus) of chemistry at Penn State. He made the news some time ago for distributing pamphlets federal courthouse steps in New York. The pamphlets were an attempt to educate the reader about the concept of jury nullification and to use it when necessary. To my knowledge, he acted alone and had no groupies or posse. He is the epitome’ of grass roots. Just Julian, standing in front of a courthouse with a bag full of pamphlets.

Now, he stands accused of a crime. What crime? Jury tampering. Federal prosecutors say he was specifically targeting those called to jury duty. He says he wasn’t.

Frankly, I believe what he did is protected free speech. He was making a point about our justice system in front of a symbolically appropriate government building. Shockingly, I even saw a Fox News commentator agree with me, and if a Fox News commentator is siding with a protestor, that says something.

So, he is accused of a misdemeanor and awaits trial. Because it is a misdemeanor, he lacks some of the protections afforded to those charged with felonies.

Here’s where the problem begins. He is appearing pro se. That is, he represents himself. I’m sure he has some folks out there advising him on courses of action. I’m not sure they are acting in his best interests.

He sent a press release widely across the internet. Attached was an email he sent to his public defender advisor:

Hi Sabrina:

This case is now 15 months old, and absolutely nothing has been done.  We have not even received a Bill of Particulars.  No surprise.  Assistant U. S. Attorney Marmelstein does not have a single witness.  She lied to a grand jury.  She has no case.  She even admits that jury nullification is legal, but claims that jurors must not be so informed.  The inmates are running the asylum.

Time Magazine just ran a cover story on U. S. Attorney Preet Bharara, lauding him for his 57–0 victory string in the Southern District of NY.  Anyone with that score is either handling only softball cases, or is in criminal collusion with the court.  It is time that he be exposed for the fraud that he is.  I had written to both Attorney General Eric Holder and President Barack Obama asking for his removal from office.  They ignored my requests.  It is time that both he and his staff be exposed as the criminals that they are.

I have been denied a speedy trial.  I have been denied a jury trial.  The judge has a vested interest in the case and is in collusion with the prosecution.  I asked that she be recused, but she has refused.  She cannot be impartial. I had already sent her a letter informing her of my intense hatred of her, and that she and her colleagues have destroyed my country.

Their strategy is to drag this case on and on, in order to keep me under indictment, in the hope that it will deter me and others from exercising their First Amendment rights.

They will never bring this case to trial.  I have had enough.  From now on, I will make the rules or inform the court that the charges are dismissed and the case terminated.  One way or another, this case will be out of the control of the District Court in a few months.  It will either have been dismissed (by me if necessary) or be in appeal.

Enough already. The shit has hit the fan.

Yours in freedom and justice—Julian

There is nothing wrong with this letter (except that it was published by him for public consumption). It is a typical client letter. It conveys emotion and frustration. We expect this from clients, and it is where we excel as attorneys because we cut-through the emotion, hyperbole, and tangential distractions and focus on the task-at-hand. We educate and advocate, one client at a time.

The press release also included this letter to the judge and opposing counsel.

Letter to Judge Wood

This is not the product of enlightened thinking regarding our justice system. It constitutes haphazard flailing that will not result in anything productive, meaningful, or helpful. It validates what everyone says about representing yourself.

Julian has a great case. He has a great shot at succeeding. The issues are wonderful and colorful, and they deserve to be advocated by a capable and competent lawyer. The issues deserve this, and Julian deserves this.

Unfortunately, his pro se advocacy hurts his case. By extension, it hurts what he advocates.

He stands to benefit by hiring a good lawyer. A good lawyer is not one who will nod and agree with all of his client’s assertions. A good lawyer is one who will analyze the evidence and facts, spot issues, and formulate a sold game plan using legal reasoning and logical principles. They will eschew emotion and focus dispassionately on how to pave a path for Julian to walk confidently out of the courthouse as a free man.

If he beats the rap, Julian receives a huge feather to put in his cap. His position in favor of educating the public on jury nullification becomes more solid.

Conversely, if he fails through a defense that is sloppy and unfocused, the general consensus will be that he was a senile alchemist with a burr under his saddle about jury duty. That doesn’t help his case, and it won’t help his cause.

His advocacy has the potential of, even on a small level, helping courtroom advocates in achieving a fair result for their clients. But, before he can help further, he must enlist their help.

Pick up the phone, Julian. Call a competent federal CDL who practices in your courthouse. Don’t hire the one who makes you happy or says “yes” to everything you say. Hire the one who has the best game plan for getting you out of this pickle.

Yodle Calling!

February 16, 2012 § 7 Comments

Ever heard of Yodle? They offer turn-key marketing, websites, and other stuff. I never really considered them. Though, they seem to thrive in our market-paranoid profession. Just check here.

Yesterday, though, as I finished a leftover chimichanga from the previous night, I got a marketing call from my friends at Yodle. It was at the right time. I was in the right place. I was bored and taking a forced break from reading a box full of medical records. Game on.

(Yes, I took notes. I always take notes and doodle during phone conversations. Habit.)

They called on my personal cell phone. This is an immediate red flag for me.

Yodle Person (YP): (in a very feminine, very flirty voice) Hi, is this Eric?

Me: Yes.

YP: This is Samantha from Yodle, how are you today?

Me: I’m good, you?

YP: I’m FANTASTIC (oh so enthusiastic, this Samantha).

Me: …

YP: Eric, I’ve got something WONDERFUL to talk to you about. I have to let you know about…

Me: Hang on. I know about Yodle, and I’m not wanting to buy…

YP: Oh, Eric, you haven’t even let me start. I have so much to tell you about.

Me Thinking: You had me at the way you said “Oh, Eric…”

Me Thinking More: Oh, Samantha, such a dirty tactic to say something to a man like that.

Me: Well, OK, I’m game.

YP: Wouldn’t you like to have more clients?

Me: Hang on. Are you talking about clients or potential clients?

YP: Both! We know how much…

Me: Well, hang on a second. Potential clients are killing me. They call. They want to talk. They don’t want to hire an attorney. They just want to suck time and information. I can’t handle a lot of those anymore.

YP: Well, we want to drive traffic to your website! Now, we have…

Me: Hang on. I just said that I don’t want a lot of cruddy potential clients who distract me from my wonderful clients. Besides, I already have a website, and it does…

YP: I know.

Me: You do?

YP: Yep, you’re at maryland criminal lawyer dot com (or something about Maryland and criminal law).

Me: Ummm, no.

YP: No?

Me: Nope. But, I do know someone in Maryland. She’s been practicing since 2001 but is taking some time off with her baby. I’d never be a member of the Maryland bar. Know why?

YP: No, but I…

Me: My friend had a helluva time. You see…. (I continued for at least 5 minutes) ….and that’s why I don’t like Maryland’s bar. Can you believe that?

YP: Wow. OK. Well, I wanted to… (sounding just a bit deflated)

Me: Oh my gosh, I totally forgot to tell you about my other friend. He’s practicing in Maryland, but then he…  (This story was probably only 3 minutes) …and then his client walked away a free man! Isn’t that great?!

YP: Yeah. Gosh. Well. Anyway, I was calling to see… (Sounding deflated and exasperated.)

Me: Hey, seriously, what’s with the completely wrong website address.

YP: I’m not really sure…

Me: Don’t you guys have Google. In fact, I bet you could even discover a lot about me with Yahoo. It’s almost dead, but still not bad. You know?

YP: Well, that’s what we got for…

Me: Hey, yeah, how did you get my information, and my wrong information?

YP: Well, we got your information from a service?

Me: (acting offended) A service? A service? I thought you were calling me about this personally. I thought I was truly valued, not just another lead on an index card. Samantha, the tone of voice you used, the friendliness you showed me. All just a lead?

YP: Eric, I’m really…

Me: Look, Samantha, you sound like a very, very nice person. I believe that, but you’re also working for a bunch of marketing scumbags. You deserve better. So do the people you call. Just think about it. I know you need a job. I get that, but keep looking for something better. You really will be happier someplace else. OK?

YP: Umm, OK?

Me: Great. Now, you have a great day, and remember what we talked about.

(Click)

Poll: Why did Greenfield shutter Simple Justice?

February 15, 2012 § 12 Comments

Wonder why Simple Justice died? You decide.

A Message for the Wuss Lawyer

February 15, 2012 § 8 Comments

Dear Wuss, Esq.:

I know, I know. You resent me calling you a wuss, but man’s gotta call a spade a spade. Or, in this case, a wuss a wuss. You know who and what you are.

You’re the guy who goes into court with a couple of decent motions. You file them knowing that you have a great chance of succeeding because, hey, the law appears to be on your side. From your perspective. You expect to win.

Gaucho knife fighting of the Esgrima de Criolla

In a knife fight, expect to get cut. Image via Wikipedia

Then, you don’t. It might be that you read the law wrong. Perhaps the opposing counsel is sleeping with the judge. Maybe the judge just plain got it wrong. All those things happen. Our system is one that relies upon human judgment. We should never expect perfection from human judgment. Mostly, though, we should never expect the judgment of others to conform to ours.

However, you don’t see it that way. You fall on the ground and cry. Cry, cry, cry. Life is so unfair. You had it right. You scream. You wail. You grasp your side as the pain of a stitch appears from your gnashing and whining. How could they do this to you. You!

And your client. Oh, the poor client. He suffers-all because of them. Them! They want to hurt him. They’ve planned this all along. They’re conspiring to get him. Sure, he was a nobody before entering the courtroom, and he’s still, relatively, a nobody now. It doesn’t matter. They’re out to get him.

You may not go that far, but you still cry. Cry and whine. Cry and whine.

Then, as you lay on the ground, exhausted from your crying. You reach for your keyboard. You write. No, not a motion or legal brief. You write on Facebook, or a message board, or a twit. You write about the unfairness. You kick the process, the “system,” the rules, and the deck so deftly stacked against your client. Unfairness reins supreme.

Tears pour from your words.

And not a damn bit of it helps your client.

They stand there looking at you all lumped on the floor. Some have the wherewithal to say “Dude, what the fuck?” Most, though, just look at you and continue to assume that you know what you’re doing. They think it’s all part of the big strategy. They wait for you to pull-out something magical.

You have no magic to pull. You explain to them that the judge got it wrong, opposing counsel is evil, and that your unfortunate charge will suffer as a result. It’s your disclaimer. And what a disclaimer it is! You did great, but that big evil system seems determined to make you the next martyr. You leave. Your client is left bewildered.

You wash your hands, go home, and whimper yourself to sleep.

The client deserves better.

In court, you’ll get knocked on your ass. Sometimes, the judge does it. Others, it is opposing counsel. Occasionally, it might even be a jury. It happens. It’s trial, after all.

So, you’re knocked down. When you’re down there. Find something–a pen, pencil, keyboard–and come up swinging. You keep fighting. Sure, there’s a system. Sure, it might make things difficult for your client, but you owe them to try and bend it, maybe even break it. Occasionally, you might even manipulate it to succumb to your own will. That’s why you’re a lawyer. You’re supposed to test things, push a little, navigate systems, and guide your clients to the safest possible waters. It’s ugly. It’s bloody. It’s like a knife fight.

Rule #1 in a knife fight: You will get cut. Expect it. Fight through it.

Rule #2 in a knife fight: You must keep swinging, and stabbing, and trying. If you don’t, the other guy will win, and you will die.

Rule #3 in a knife fight: Somebody will lose. Do whatever you can to not be this person.

Lawyers who bemoan the legal process amuse and disgust me simultaneously. They want change, yet they lack the foresight to see where the change may lead. For criminal defense attorneys, the process never changes in our favor. Change in favor of fairness to alleged criminals doesn’t win votes. Ever. We should aspire for old, musty systems. They are familiar, and the longer something exists, the easier it is to find ways to bend it in our favor and show how their absurdities should not be held against our client.

So stand up. Fight back. Move to the next objective. Plan for contingencies. Get dirty. Get bloody. Learn to love it. Your clients deserve that. Stay and fight. Charge back in to the fray again and again. Client after client.

As an added benefit, I’ll stop calling you a wuss, and that’s not a bad thing, either. But, don’t do it for me. Do it for your client.

Thanks for your attention.

Your buddy,

Eric

Incoming!

February 7, 2012 Comments Off

In the Army, people yell “Incoming!” when they perceive an artillery/mortar barrage is hitting their location. It is actually a drill, practiced regularly, where the first person to detect the indirect rounds yells the word, everyone falls on the ground, waits for it to end, and then runs in a predetermined direction under the assumption that more rounds are on the way.

I feel the same way when folks find me through search engines. With each flurry of searches, I hit the ground, wait for it to end, and then run in whatever direction seems appropriate. You never know what is going to happen, and you never quite know how they’ll find you. For those of you Popehat aficionados, it is similar to the “Road to Popehat” series.

Here are a few.

Old Style Black Cat Tattoo. As opposed to the new style black cat tattoo?

Pornstars in the Military. Where? Who? Where’s the link? Damn you, damn you for teasing me this way.

suffupthere. I can’t tell you where to find the stuff, but I hope it has a space bar.

Love Your Huckleberry. You should love your huckleberry very much, and take care of it, and wash it.

video sex porno air force and army. Damn you, teasers. You just don’t stop.

ethernet tattoo. Really? People get these? I guess if you’re really into your online self…

Mr. Earl the Prize Man. Looks like I wasn’t the only one who found him creepy.

is it silly to use esq after your name. Yes. Yes, it is.

butterfly tramp stamp butt. This is what tells me that I’m attracting a sophisticated, cosmopolitan crowd.

is it bad to work for a solo attorney after 1L year. If you don’t mind working for a cussing, irritable, unmitigated jerk, and if you don’t mind using an old bedside table as a desk, and if you don’t mind working for a small package of Goldfish as daily compensation, then a solo practitioner is the way to go. Knock yourself out.

in your dreams tatuaz. Why, just the other day, I said this in court.

azimuth of moon in manhattan, ks. Congratulations to Manhattan, KS! They have now discovered crack cocaine.

white bird shit on my doorstep. See, now this is why I wanted to have a blog–to help people who are truly in need. But, to clarify, was the shit white, or was it a white bird that did the shitting, or both? It matters.

evil thought of the day. Thank goodness I’ve cultivated such a positive online brand.

follow your dreams with butterfly tattoos. Well, I guess it has more practical value than a SEO guru, or a life coach.

do women like unwashed men. Why yes, yes they do. Now here’s a guy who’s on his way to greatness.

There’s Spam, and Then There’s Lawyer Spam

February 6, 2012 § 1 Comment

For the longest time, this blog was only spammed by strange overseas corporations and health-food consortiums. Now, I join an illustrious group of law bloggers who are spammed by our own kind through blog comments. Thank heavens for my spiffy anti-spam filter (which caught both of these).

Let’s start with the Mesriani Law Group who left this insightful post regarding my words in opposition to SOPA:

I mean, could you at least get sweetannie32 a mesriani.com email address? After all, look at the wonderful insight she espouses on behalf of your firm. I concur with her insightful and learned opinion. Though, I had hoped she’d address the fact that SOPA would also cause dogs and cats to live together in harmony.

Then, let’s move to the law firm of Waddington and Gonzalez who gave me this next gem–a cut-and-paste from the Manual for Courts-Martial. Sorry, fellas, I already own a copy of the MCM. No need to send it piecemeal through comments on this blog. Though, it certainly adds a great deal of insight to the recent issue of Marine’s urinating on dead enemy combatant bodies. So, exactly how does noncompliance with procedural rules apply to them? The floor is yours.

Manning Court-Martial: Heads-Up

February 3, 2012 § 2 Comments

For those of you legalish people who are keeping the Bradley Manning court-martial in the back of your minds, now is the time to start peeking at the headlines occasionally.

His case has been referred to a General Court-Martial (the Army’s version of a felony court).

“Referral” is a precise legal term in the Uniform Code of Military Justice that signifies the point at which a Commanding General/Admiral decides to send a case to court-martial. Unlike civilian courts where the District/County/State Attorney makes such determinations, courts-martial occur at the will of military commanders, and their attorneys merely provide advice.

It is significant because a judge will now be assigned to his case and motions practice begins.

Now, we should start seeing fights over discovery, oodles of motions in limine, illegal/improper pretrial confinement/punishment motions, speedy trial fistfights, venue mud-wrestling, and unlawful command influence battle royales.

Failing To Always Be Closing

February 3, 2012 § 8 Comments

Today, I learned that lawyers should “Always Be Closing” in the Glengarry Glen Ross fashion. The assertion is that a lawyer’s primary focus should be on closing a deal and getting cash, check, or a credit card number. I have yet to see a lawyer with over 5 years experience (of actual law practice) who agrees, but perhaps they’re just dinosaurs who’ve lost sight of the cutting edge.

I don’t follow the ABC thing, either. That might make me a bad businessman. It may make me the antichrist of opportunism. It may mean that I miss on a big check or a 7-series. I don’t care.

It made me think of something that happened this week.

A potential client (PC) called me some weeks ago and explained his case.

Note: I didn’t just let him explain. I asked very precise questions and demanded precise answers. I didn’t let him ramble. I never let PCs ramble. I do this out of loyalty to my existing clients. My idea of a free consultation is a conversation controlled by me. It is not an opportunity for PC to get free advice. It is my chance to evaluate whether I can assist in a case, and how.

I agreed to take the case and quoted a fee (a sizable one). He agreed.

On Tuesday, I received a parcel with documentary evidence, a check, and a copy of the representation agreement. I set the check to the side and began reading the documents contained in the package. The documents contradicted what PC told me. What had been briefed as a winnable, fresh case was actually a case that, due to various pro-se actions, had a slightly less than zero percent chance of succeeding.

I could’ve cashed his check, spent time on his case to substantiate the fee, written some flowery and important-sounding documents, mailed them, and then act surprised in a few months after being told that we lost. I could’ve told him how the board deciding his matter were a bunch of rubber-stamp-idiots and bureaucrats who were clearly biased against him. In short, I could’ve closed the deal, bullshitted my way through a horrible case, and then make him feel like our valiant efforts were thwarted by evil powers-that-be.

I didn’t do this.

On Wednesday, I mailed him the documents, his check, and a letter explaining that I could not accept his money for a case that had no chance of success.

There you go. Proof that I’m a horrible businessman. Proof that I let dollars (thousands of them) slip through my fingers. Proof that I’m not capable of building what, for some, is a successful and lucrative practice.

And, I’m just fine with that.

Where Am I?

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