Trial Techniques: First, We Piss Off the Judge

October 28, 2014 § 6 Comments

One day before a motions hearing, I sit my client down for a chat about strategy.

“OK, so, tomorrow, I’m going to make this motion, but the judge probably won’t like it. After listening to each side, he’ll probably rule in favor of the prosecutors,” I begin.

“So, what do we do then,” client inquires.

“Well, that’s when I’ll make the same motion again. Except, I’ll act miffed.”

“You’ll act miffed?”

“Yes,” I respond. “I’ll get a little red in the face and ask for reconsideration, restating everything that I already stated.”

“OK, then what will the judge do?”

“Well, he’ll rule against us again, but that’s when the fun starts.”

“Oh?” stammers the client.

“Yep, then I’ll get pissed. I’ll make the motion again. The judge will try to say something, but I’ll talk over him, stating why his conclusion is wrong and why we should win.”

“Will that work?”

“Well, the judge will be pissed at this point, but I’ll keep hammering away at him. Expect me to raise my voice significantly, maybe even screaming, yelling, smacking the table, and tossing paperwork and pens. I might even accuse the judge of ruling against us because of your ethnic background. Then, I’ll top it off by demanding that he recuse himself, simultaneously removing my jacket and tie for dramatic effect.”


“Yeah, where he quits as the judge and another judge is appointed to your case.”

“Will that happen?”

“No, probably not, mainly because it is me that’s kicking up the stink, not him.”

“So, what is all of this going to do for me?” he finally inquires.

“It will show you that I’m working hard and earning my fee.”


I’ve never understood the purpose of arguing like this with the judge. I’m not talking about tacit disagreement while ensuring that all facts and arguments are reasonably articulated for the appellate record. I’m talking about all-out courtroom battles with the judge that result in nothing but ill-will and the judge firmly entrenching himself into his decisions.

Some lawyers see such skirmishes as points of pride, notching a record of each into the leather of their briefcase. Later, they brag about their brush with contempt of court.

I never understood this for one reason, summarized in a question. What does this do for the client?

Sometimes, we take chances in an effort to score a big win for a client. These are usually calculated. In doing so, we weigh the pros, cons, and possible outcomes in order to derive the best course of action. I get that.

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

B. State Reason

C. Listen to other side

D. Clarify reason in light of what other side said.

E. Go back and forth until judge directs a halt.

F. Listen to ruling from judge.

G1: If the ruling is in your favor. SHUT UP.

G2: If the ruling is not in your favor, ask for reconsideration based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.

At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.

Maybe it is because the attorney is passionate. You know how I feel about this. Let me summarize. If you’re passionate about your case and/or client, you ain’t capable of being an effective lawyer for them.

Maybe it is because the lawyer thinks this is the right thing to do because of what they’ve seen on TV or heard in exaggerated war stories told at the bar. This person desperately needs a mentor.

Maybe it is because the lawyer wants to show that they are working hard for the fee they charged. In this case, I feel sorry for the client. It’s going to be a bumpy ride.


H/T this by Jamison Koehler and various by SHG

Azimuth Check: Giving You the Willies When You’re Well-Off

October 22, 2014 § 6 Comments

It’s October–Halloween time. Time to give you the willies.

“I just gave the copy a wet Willy.”Compass

Let’s just get straight to the story, via the Mankato Free Press.

Armed with two freshly licked fingers, a former Kiester man home on leave from the Air Force thought it would be funny to give the officer the Willies. Riley Louis Swearingen, 24, of Goldsboro, N.C., was getting on the “drunk bus” after the downtown bars closed early Saturday morning when he allegedly licked a finger on each hand and stuck them into the ears of a police sergeant.

The officer was not amused and Swearingen was immediately arrested, said Cmdr. Jeremy Clifton of the Mankato Department of Public Safety. The sergeant was on the bus talking to the driver when Swearingen boarded at about 2:20 a.m. After feeling two fingers “wet with saliva being pushed into his right and left ear canals, which caused pressure and discomfort,” the officer turned around to see Swearingen walking away.

Swearingen then sat down with a group of friends and said, “I just gave the cop a wet Willy” the officer reported.


I’ll start with my most trivial concern.

Why is “Willy” capitalized in this article? Why not also the word “wet?” These things are important to me.

Next concern is with the charging. Nobody would ever charge a drunk idiot, with no other intent than trying to be funny, with a felony, right? This is clearly, at worst, a case of first degree dipshittery, punishable by a bit of pepper spray and then we call it a day. (Normally, I wouldn’t condone random use of pepper spray by law enforcement as summary punishment, but the more primitive side of me thinks it to be closer to quit pro quo than a permanent criminal record.)

No matter, I’m sure they aren’t going to charge the kid with a felony. That would be really harsh considering his intent and the fact that he was, after all, getting on the “drunk bus” and his later BAC of .18.

Swearingen was still in jail Monday afternoon awaiting a court appearance after prosecutors charged him with a felony for assaulting a police officer with bodily fluids. That is the worst charge that was requested by the officer, who didn’t go through any testing to see if he might have been infected by the saliva that was left in his ears as a result of the double wet Willy. Lesser charges of fifth-degree assault and disruptive intoxication were also filed by the Blue Earth County attorney’s office.

Um. OK. I see. Well, as soon as he sobered, I’m sure they released him to face whatever consequences on another day. After all, no reasonable public policy is served by keeping him in jail.

When Swearingen appeared before District Court Judge Kurt Johnson at about 4 p.m. Monday, he explained what happened. He said he had flown to Minnesota from North Carolina because he was supposed to be in a friend’s wedding Saturday night.

OK, wrong again. In case that snippet didn’t make it clear, he was held from 2AM-ish on Saturday through to late afternoon on Monday, more than two days. He also missed his buddy’s wedding, which was his purpose for taking leave.

But, I’m sure they are going to see the totality of what happened and realize that a few days in jail (with a probable hangover, no less), missing his buddy’s wedding, and all the second and third order effects will be enough to move him along after having clearly learned a valuable lesson.

“I thought it would be incredibly funny to give a police officer a wet Willy, to which I was sorely mistaken,” Swearingen explained. “I’m incredibly sorry for what I did. I never thought I would be going to jail for the weekend.”

Johnson offered to dismiss the assault charges if Swearingen would agree to plead guilty to the misdemeanor charge of disruptive intoxication. That would allow the airman to get out of jail and return to his duties in North Carolina as an air traffic controller at Seymour Johnson Air Force Base in Goldsboro.

Swearingen quickly agreed to the deal. He was sentenced to the three days he spent in jail and was told to pay $77 in court costs.


I’m wrong again.

Let me explain my biggest problem with this.

This statement by Judge Johnson has a lot of problems “That would allow the airman to get out of jail and return to his duties in North Carolina as an air traffic controller at Seymour Johnson Air Force Base in Goldsboro.

You see, the is not just going to get to go back to his duties. Because of what happened, he is likely facing, at a minimum, adverse administrative actions by his chain of command due to the fact that they tend to not smile upon acts of first degree dipshittery. In fact, the Air Force tends to take a much harsher stance against such things, especially among air traffic controllers who they expect to be individuals that exercise good judgment at all times. Now that he has a conviction, his security clearance must be re-assessed, and he may not be considered fit to serve in his current specialty, even if he is lucky enough to keep a clearance.

In short, the Air Force doesn’t really like keeping kids who have convictions, even misdemeanor ones.

Dear Judge Johnson, this isn’t the end for this kid. It is just the beginning. To think that he gets to just go back to his Air Force duties is naive, at best. Potentially, you just sentenced this kid to losing his job in the Air Force, an adverse discharge, and a lifetime of stigma with a less than honorable discharge and your oh-so-lienient conviction.

Does he deserve all of that? I don’t think so. I think a bit of pepper spray, some pain and discomfort, and a hangover at a wedding the following day would’ve been just enough.

Are You Well-Off?

Apparently, my definition of “well-off” isn’t the same as many of my potential clients.

As loyal readers of this blawg (all 23 of you) know, I keep track of trends involving potential clients. Many are amusing.

Here’s one that appeared in just the last year or so.

A potential client calls the office and states that they want to clean up part of their military record. During the conversation, they state something akin to “Now that I’m well-off, I want to take care of this thing.”

So, when I hear “well-off,” I picture someone who lives in a stable household with reliable transportation, steady income, means to provide all the “needs,” and the ability to afford most “wants.” I tend not to think of it in a metaphysical sense that might apply to a person whose content heart feels “well-off” by living in simple joy with their family as squatters in a tent in the middle of an abandoned amusement park in Jasper, Arkansas.

I think my view of “well-off,” as a more materialistic quantification, is the popular and accepted view.

A few months ago, I had one of these “well-off” folks call the office, but his case wasn’t particularly complex. I felt I could handle it in a fairly short amount of time. So, I quoted $500 as a fee. My experience is that this is a fairly low legal fee, relative to most. However, it was fair and would’ve compensated me for my time.

The response was, generally, as follows.

“Whoa, well, I’m going to need a few months to gather those funds. Can I call you back after I get my tax refund in February?”

Sure. You do that.

So, what should you learn from this?

Never hold your breath for a call back from well-off potential clients.

Solar Storm Survival Guide

September 12, 2014 Comments Off

Everything you need to know about the upcoming solar storm that is heading straight for our little blue marble is contained in this scientist’s facial expression.


An unaltered screen capture from the USA Today mobile website.

Azimuth Check: Wow! That Person Has Medals!

September 10, 2014 § 1 Comment

I’ve been meaning to write this post for several days now. They stem from a few choice headlines from the August 28 Early Bird (a daily digest of military-related news, published by the Military Times). Most days, I scroll through the headlines without seeing much of note. On that particular day, there were several headlines that caught my eye.

Where to begin…Compass

Pursue, Or Else

The former commanding general of US Army Japan will retire as a 1-star general after the Secretary of the Army determined that he did not satisfactorily perform in the rank of Major General (2-star).


“Maj. Gen. Harrison was investigated and disciplined for failing to properly address a sexual assault allegation in his command,” the release states.

OK. Got it. What this essentially means is that he probably received a letter of reprimand (placed in his official records) along with a bad performance report when he was relieved of his command under these circumstances. These matters were reviewed by the Grade Determination Review Board once he applied for retirement, and those findings were affirmed by the Secretary of the Army. It happens.

Here’s what is troubling to me: What constitutes “failing to properly address a sexual assault allegation?”

If the evidence, on its face, is absolutely clear, then that seems easy. However, most allegations are not that easy. My experience tells me that many allegations of sexual assault are accompanied by bad facts and evidence. Reasonable doubt is abundant, and to take the case to trial would be a waste of time and resources, not to mention the unnecessary and unfruitful stress and discomfort placed upon the complaining witness. Assuming that the complaining witness is, in fact, the victim of a sexual assault, prosecuting a case that is doomed to fail, based on the assessment of competent and experienced prosecutors, does more harm than good.

Here’s the problem with punishing, publicly, a leader for “failing to properly address a sexual assault allegation.” It will cause most to err on the side of prosecuting any and all allegations. The only people who benefit from this are defense attorneys who get to pad their stats. That’s already happening, as any military defense attorney will tell you.

Am I saying that the general was right? Nope. I don’t know all the facts, and, to my knowledge, no specifics of the alleged assault have been published. My problem is with the general principle and its foliow-on effects, which, in the end, don’t help actual victims or good order and discipline.

The Mystery of the 7-foot-tall Sergeant

Evidently, evaluation reports (the primary tool for determining whether sergeants are promoted) are being fudged a bit.

A recent promotion board tasked with examining the files of first sergeants and master sergeants came upon a stunning realization: Not only were senior NCOs gaining weight to an alarming degree, they were miraculously getting taller.

So either these senior noncommissioned officers had all experienced latent growth spurts, or there was some funny business going on with the height stats.

The promotion board concluded the latter, and issued a rare and candid smackdown in its after-action report.

Not only did the board call out the E-8 population for having “too many overweight soldiers in the zone of consideration,” but they also called for accountability of raters and senior raters tasked with filling out the NCO Evaluation Reports.

In its report, the board stressed that raters must correctly annotate soldiers’ height and weight data.

“As soldiers gain weight over time, they often, according to their NCOERs, grow in height” so they will be in compliance with Army’s weight control regulation, according to the Regular Army Sergeant Major Selection, Training and Promotion board that met in June. It was easy for the board to suss out potential cheaters by simply comparing the height in the NCOER with Enlisted Record Briefs and Academic Evaluation Reports.

They can’t be serious. So, what they are saying is that there is systematic lying, exaggerating, and puffery in evaluation reports?

I’m glad they realized something in 2014 that everyone else knew decades ago. Nice of them to catch-up with the general population.

As I stroll around various military installations in various places, I never cease to be amazed at the size of today’s soldiers, especially senior Noncommissioned Officers. In many cases, I had no idea that uniforms were made in sizes adequate enough to accommodate these hulking masses of redundant protoplasm.

Oh, and lest I be mistaken, I’m not talking about the gym rats whose pounds are comprised of muscles upon muscles. I’m talking about those who, when asked, state that they began to experience a gland problem after a recent trip to the Joint Readiness Training Center or whose treatment for PTSD involves the inhalation of 25,000 calories from carbohydrates every day.

Back to evaluation reports. The bottom line is that, as long as such reports exist, raters will seek ways to puff-up and protect those who they like. That’s just life.

Are You Serious? She Earned Medals?!

In a very tragic and sad story, a Sergeant First Class at Fort Lee, Virginia entered her place of work and killed herself with a firearm. This is sad. Absolutely tragic.

As with any horrifying tragedy, they are always followed with at least one stupendously ignorant Associated Press news article. For this one, the fine folks at AP were definitely on their toes with the following headline:

“Soldier who shot self at base had earned medals.”

Shocking. Shocking. Shocking.

Let’s dig deeper.

A soldier who barricaded herself in a building at a Virginia base and then fatally shot herself in the head earlier this week was a 33-year-old human resources specialist who had earned Army commendation and good conduct medals in the past, the Army said Wednesday.

OK, could they be a bit more specific?

The Army says her awards and decorations include three Army Commendation Medals, four Army Achievement Medals, one Joint Meritorious Unit Award and four Army Good Conduct Medals.

Let’s break this down.

First, the deceased NCO was a Sergeant First Class (SFC) with almost 14 years of service. This is important to know as we look at each of the medals.

Good Conduct Medal (GCM): If a soldier serves for 3 years without any adverse disciplinary action, they get a Good Conduct Medal. Given the fact that she was promoted to Sergeant First Class and has 4 GCMs, this means she behaved herself for at least 12 of her 14 years. Should anyone who earns a GCM be proud? Sure. However, it is not important or noteworthy to this tragedy. In fact, it merely makes her akin to most SFCs in the Army.

Army Commendation Medal (ARCOM) and Army Achievement Medal (AAM). Most Soldiers earn one of these two awards every two years (on average). They are given when a soldier moves to a new duty station, changes duty assignments, and are occasionally given to recognize singularly commendable actions or events. So, most SFC’s have a handful of AAMs and 2 or 3 ARCOMs. Therefore, again, her having these medals is not noteworthy, significant, or illustrative of anything important related to the tragedy.

Joint Meritorious Unit Award. This means she was assigned to an Army unit when that particular unit was given this award for (usually) overseas service. Most individuals who have been deployed to Iraq or Afghanistan have been assigned to units given this (or one of the other) unit awards. She served overseas, as is the case with, arguably, a majority of SFCs in the Army. So, knowing my conclusions from the first two sets of medals, you know what I’m going to say about this one.

Am I trying to take away from this tragedy or her career as a Noncommissioned Officer? No. It is horrible and sad, and she certainly accomplished good things during her career. However, it is shameful that the AP is making people dumber with such insipid, irrelevant articles. They should just amend the headline to say:

“Soldier who shot self at base was known for wearing an Army uniform, occasionally.”

Stop AP. Just stop.


That Day When I Offended a Potential Client

September 9, 2014 § 1 Comment

This is a tale of two conversations.

Conversation 1

Me: Hello?

Potential Client (PC): I just have a few questions… (A few questions ensue.)

Me: (Answers questions. Somewhat. Well, not really. I didn’t give away the bank. I didn’t even reveal the cashier.)

PC: Thanks. This has been really helpful.


Three weeks pass…

Conversation 2

Me: Hello?

PC: Hi, this is (name) calling you back.

Me: OK

PC: We talked a few days ago.

Me: (Flipping through call log.) Oh, you called me three weeks ago. You said (short summary of case).

PC: Yes! That’s me!

Me: What’s up?

PC: So, have you been thinking about my case? I’d like to know your thoughts.

Me: Hahahahahahahahahahahahaha.

PC: (Offended)

An Afternoon With Sharp Cheddar

July 30, 2014 § 3 Comments

During an afternoon out with Sharp Cheddar (for an understanding of who Sharp Cheddar is, read this first), who is now a precocious 8 years old, the following conversation occurred:

Me: How ’bout we go to 5 Guys Burgers and Fries?

Sharp Cheddar (SC): That sounds like a place where fat people eat.

Me: What?

SC: It sounds like a place where fat people go to eat.

Me: Where do you get this from?

SC: It just sounds that way.

Me: But how do you get that from 5 Gu…

SC: That’s just how it sounds.

Me: Well, they have really good burgers.

SC: So, I’m right that fat people go there?

Me: I didn’t say that. Non-fat people eat good food, too. And it really isn’t nice to talk about overweight people like this.

SC: I’m tired of this conversation.

(Pause as we drive the the final few miles to 5 Guys)

SC: See, there’s a police car there.

Me: What?

SC: I told you this place was for fat people. A police car is here.

Me: What does that have to do wi….

SC: Usually they like donuts, though.


SC: Calm down, dad. (Looks around.) Hey, some soldiers are going in there. I feel safer now. Let’s eat.

Me: …

Azimuth Check: Lawyer or Lawyer*

July 28, 2014 § 5 Comments

It’s been a while. I know. Such is life when you are maintaining a practice whilst packing house and home and moving to a new place. At one point, I decided to abandon Unwashed Advocate. I do this once a year, mostly during summer months. This decision is celebrated by me. It sure feels good to tell your blawg to go to hell.Compass

Then, I return.

After writing brief after brief, appeal after appeal, it is nice to write something that contains your voice. Here, I don’t worry about using passive voice or botching citations. That’s nice.

So, what’ve I been thinking of this summer? Let’s check my direction and see…

Lawyer or Lawyer*

I love talking to other lawyers. I hate talking to other lawyers.

During one of those conversations where, while listening to the other lawyer drone on and on about what she thinks about the legal profession and other lawyers and how other women dress in court and contemplating my suicide plans if she doesn’t soon execute a Kopfian STFU…


She mentioned a particular legal case and remarked “I could never handle cases like that.”

“Huh?” I intelligently replied.

“I SAID I could never do cases like that.”

“Oh, so you’re an asterisk lawyer.”

“What did you just call me?” she retorted.

“I SAID you are an asterisk lawyer. You’re a lawyer, but only when the case or conflict supports and strokes your delicate sensibilities.”

“Are you saying…?”

“Yep,” I cut in, “deal with it. It’s just the type of lawyer you are.”

Knowing me, she got over it quickly, but it reminded me of something I’ve noticed for the last 10ish years.

There are a lot of asterisk lawyers out there.

First, a definition. An asterisk lawyer is a lawyer who is willing to zealously represent some. However, they are completely incapable of representing others.

Here are examples of lawyers*.

“I could never represent a man accused of sexual assault.”

“I could never represent big business.”

“I could never represent a terrorist.”

“I could never take a case representing the tobacco industry.”

“I could never prosecute…”

“I could never defend THOSE people…”

Do not confuse this with the following, which is not a lawyer*.

“I limit my practice to only scrotum husbandry cases.”

That last example is merely someone who limits their practice in order to be very good at one niche. That isn’t saying that they are flatly incapable of representing a particular side, client, or subject.

Lawyers* should be forthcoming about their limitations. Hence, the “*.” At the bottom of their bio, there should be the caveat that quantifies the *, like:

*Except men accused of sexual assault. They should all be emasculated once charges are filed.

*Except terrorists, who should be summarily executed.

*Except big businesses, who are just looking to screw the little guy. Having said that, I can’t wait to upgrade my iPhone and trade-up for the newest, loaded GM vehicle.

*Except the tobacco industry, because cigarettes kill, and that makes me sad and tearful.

Just as I don’t appreciate passionate lawyers, I similarly do not appreciate lawyers*.

A while ago, I started a case with a new co-counsel. They were relatively new to the legal profession but were generally enthusiastic about learning and perfecting the craft. The conversation started something like this:

“Eric, what part of the defense do you want me to work on?”

“None,” I replied.


“I want you to focus on prosecuting the case,” I stated.

Confused, they confirmed “You want me to prosecute the case?”

“Yep, and I want you to be flawless.”

Through the ensuing conversation, I explained myself. I wanted them to determine the most dangerous, horrible, loathsome, and damning things that could be done to us by the opposition and play the role throughout our preparations. Without that, our case was just flapping around aimlessly. I concluded the conversation as follows:

“And, when you do it, I want you to love it.”

I love what I do. Really. However, I could prosecute. I could represent a big, nasty, unfeeling, odious corporation. I could represent a nonprofit, and I could represent a party seeking to destroy a nonprofit. I would take on a client who committed (allegedly, of course) horrible, loathsome acts that would shock the conscience of the average person.

Our job as lawyers is to advocate for a particular perspective as part of an adversarial system. We don’t have to accept the perspective of our client into our own hearts. In fact, it is probably best that we not accept it. We fight for the case we are given, not the case that matches our delicate sensibilities. A lawyer can represent any client in any matter under any conditions. That’s what we are trained to do.

That’s what I want to see in a lawyer. That’s what I want to hire. That’s what I want as a co-counsel.

Everyone else is just a lawyer*.

Dunkin Donuts in the Afternoon

A few habits really say something about a person. Here are two examples.

Example 1: A person who drinks bourbon in the morning.

Example 2: A person who eats donuts after 2PM.

Today, I received an email saying that I could get a sweet discount on donuts after 2PM. Therefore, I plan to be one of those mentioned in the second example.