A Conspiracy to Demand Excellence

Conspiracy theorists amuse me–except when I’m attempting to do real work and they call me to beg that I take their case.

Lately, the big conspiracy is that smart phone manufacturers, service providers, and the government are all conspiring to track each individual American. I called bullshit on this a while back, and I still do. Having minored in computer engineering as an undergrad, I understand the challenges of creating computer-based systems and maintaining certain historical data in order to allow the system to operate at the optimum level. Plus, those struggling with thousands (and sometimes millions) of pages of code to allow us to own gee-whiz stuff are undoubtedly going to overlook something. Lord knows, I had a hard enough time debugging 10 pages of code (I got a C- on that assignment). It is infinitely more tedious than reviewing a trial record for appellate issues.

I don’t get upset when folks run around, hair afire, screaming conspiracy. It’s all part of the freakshow. What does upset me are mistakes that compromise our ability to remain private. This is also part of the freakshow, but it can do some serious, irreparable harm.

A friend of mine, Terry Howerton, sheds some light and reason upon this situation during an interview with a TV station in Chicago. Terry is a fellow Eagle Scout, and I’ve known him since the mid-80s. Currently, he is the president of the Illinois Technology Association.

Speaking of tech, there are a lot of wannabes and fanboys out there. They are the folks who purport to understand the innards of each latest piece of tech, and they delight in showing you how you should become a slave to some gadget. Terry is not one of these. He believes that tech should work for us, but only when necessary. He thinks that tech should improve and change to suit us, not the other way around.

He is the real deal. Where many people in Chicago complain about the state of the public school systems, Terry is actually doing something about it. The magnum opus of his labors is the Chicago Tech Academy, a magnet school designed to provide opportunities to incoming high school students from low-income families.

What a novel concept. A person actually doing something to help others and demanding a high level of commitment and accountability in the process.

Oh, you might also hear him mention “mentors.” At 3:35 into this clip, he starts rolling. He characterizes it as a “hard” program. He notes the need for long hours. He requires commitment, and if a person lacks total dedication, “get out of the way.”  He talks about the necessity of high expectations. Imagine that, and he’s only talking to prospective high school students, not professionals.

Speaking to those who may lack full dedication to education and learning: “If you’re not that student [with full commitment], I wish you well, but I also wish you to leave.”

I think we’ve heard similar things from someone in the legal industry.

If you demand excellence, you’re eventually going to get it.

If you disagree, fear not. All you need to do is click your heels three times, say “it’s all a conspiracy” with each click, and you’ll find yourself back in bed wrapped in the same musty blanket that’s covered you for years.

Trust Megalomania

Today, Scott Greenfield responds to an article by a Trust Advisor stating that Scott is logically flawed and often wrong. I read both, and it essentially revolves around marketing and its necessity (or lack thereof) in the legal profession. My take involves a bit of dicta from the Trust Advisor’s post.

To provide background, Greenfield made this statement as part of a previous post on marketing:

We don’t sell used cars.  We are responsible for people’s lives.  We used to be, anyway.  And people who are responsible for the lives of others don’t think of them as leads or consumers.

My gripe comes with the following quotes in response by Charles Green, the Trust Advisor:

When someone starts talking about being “responsible for the lives of others,” get your megalomania sniffer out.


Scott says he’s responsible for his clients’ lives.  I suggest that’s a bad rule for the rest of us.

We’re not responsible for our clients’ lives; they are.  Our job is to help them—not live their lives for them.

Well, then that makes me a megalomaniac, because I know, firsthand, that I’m responsible for my clients’ lives.

Green talks about his experiences with lawyers and law firms. Just how deep is that experience?

I can’t speak for all CDLs, but I like to think that my experiences are similar to that population as a whole.

I’ve talked a client through a situation that might result in a loss of freedom for the rest of their life.

I’ve watched a man hug his wife and kids for the last time for many, many years.

I’ve held a mother as she cried when her son was led-away in hand irons and shackles.

I’ve helped to explain to a 5-year-old that “daddy wouldn’t be home for awhile.”

I’ve had clients detail to me, for the first time, the sexual abuse they endured throughout childhood.

I sat in a room trying to talk a tearful client through upcoming testimony and cross examination.

Countless times, I’ve had my hand upon a trembling shoulder as a judge asked the jury president “What are your findings?”

To think, the fact that I see that as taking a man’s (or woman’s) life in my hands makes me a megalomaniac (or at least a worthy target of a megalomania sniffer). If that be true, then I gladly accept it as a life sentence.

Frankly, I find every representation to be the most humbling experience of my life. I feel small, and my only goal is to help the kid standing next to me as much as I can. I want them to be free. I want to ease their pain. I want them to move forward and succeed. I want their kids and family to smile. They hire me in the hopes that my presence and abilities might improve their chances at getting any of the aforementioned opportunities. They bring me into their life. They show me their most shameful skeletons. They introduce me to their family. They tell me of their continuing desperation. Each takes their life, places it into my hands, and says “help me, please.” That’s humbling as hell.

For us, holding a person’s life in our professional hands is not a rule. It is a reality. Like it or not. That person’s life is our priority. With it comes their good name, future opportunities, and future happiness. For us to place that charge upon a pedestal signifies the importance we place upon each individual client. That dedicated prioritization is what gives us the ability to call ourselves professionals–not a degree, website, fancy suit, or search engine rank.

I don’t pretend to understand what Green sells. From what I see, it involves Trust Diagnostics, a Trust Roadmap, Trust Workshops, and Trust Based Coaching. He also offers a list of Trust Quotes and an exceedingly fun Carnival of Trust. For a fee, you can even learn your Trust Quotient. So much trust, so little time.

From my vantage point, he is a marketer, and he doesn’t like others disparaging his wares. Luckily, he’s not a megalomaniac like us CDLs. Of course, I’m sure he would change his mind if we opted to pay for some Trust Raisin Bran or an invigorating Trust Enema.

(Ed. Note: I considered juxtaposing his use of the word “Trust” with that of the word “Victory” in Orwell’s 1984, but I opted against it because I’m above such low blows. OK, I’m not above low blows. I was just lazy.)

As for me, I’ll keep affording people the chance to hand their lives to me in the hope that I might be able to safeguard them, if only for a bit. I’ll continue to take their lives seriously, while treating myself with opposite consideration.

As for marketers and their gnashing of teeth, I’m not personally affected by them. I don’t earn enough money to cause a blip on their radars.

A Short Open Note to Criminal Defense Lawyers

Kinda nifty to see, but tastes like shit. Just like LISTSERVs.

Dear Fellow CDLs:

Stop reading listservs.

Listserv technology is the Coelacanth of the internet–nifty that it remains after all these years, but of no practical value.

Several things, in my estimation, are more productive than listservs. Practicing your origami skills is one.

If you truly have a question about upcoming cases and clients, get on the phone with a trusted colleague. They will likely enjoy the chat. If you don’t have someone of the “trusted colleague” variety, spend your spare time finding one.


Your friend,


Unlawful Commander-in-Chief Influence

Unlawful Command Influence (UCI) has been frequently called the “mortal enemy of military justice.” The Uniform Code of Military Justice (UCMJ) and the Military Trial Judiciary take great pains in eliminating any command influence (real or perceived) from the sanctity of the military courtroom and justice process. It is a particular worry for the military because of rigid rank structure and the importance of obeying orders. This environment is ripe for abuse, if not properly managed. If allowed, UCI destroys trust in the UCMJ and impairs the proper application of the constitution to accused members of the Armed Forces.

For this post, I’d like you to remember some important things:

  • UCI is bad. Very bad.
  • UCI can be committed by anyone in a command position.
  • The President occupies the highest command position in the US Armed Forces (Commander-in-Chief).

Many who read this blog are not intimately familiar with the UCMJ or UCI. For this reason, I’ll give an example of run-of-the-mill UCI.

A Brigade Commander (Colonel) commands approximately 3000-4000 troops. One of these soldiers is caught smoking marijuana in violation of the UCMJ. The Brigade Commander orders a lower commander to punish this soldier as harshly as possible. This is UCI. The lower commander, by law, has independent authority at his/her level to dispose of this criminal misconduct as they see fit. If the Brigade Commander is so hot-to-trot about punishing the soldier, he can do so by elevating the matter to his level, if he feels so inclined. It is impermissible for him to order the lower commander in matters necessitating independent discretion.

That is an example of something relatively simple. The next example is a bit more severe.

A soldier faces a court-martial for child molestation. One potential member of his jury is Major X. Prior to the court-martial, Major X is called-into his Brigade Commander’s office. The Brigade Commander tells Major X that he expects his officers to show no mercy to “kiddie diddlers.” Further, he says that he read the soldier’s confession, and he is definitely guilty.

Wow, here is a high-level commander attempting to influence the outcome of a court-martial where the members of the jury should have complete independence in voting their conscience. This example is extreme, and potentially subject to prosecution.

The problems are numerous in the second example:

  1. He clearly implies that he expects a harsh punishment.
  2. The Major is under the authority of this Brigade Commander, and, presumably, his next promotion depends on a good evaluation from the Brigade Commander.
  3. The Brigade Commander tells the potential juror that the soldier is guilty (whereas the Major should presume not guilty unless and until proven guilty at the court-martial)(not to mention what happens if the confession is suppressed).

Today, I’m focusing on problems related to a commander saying something similar to #3.

I’ve used a Brigade Commander as the bad guy in my examples, but it could occur at any level of command. Most of the time, higher commanders are taught to respect the justice process, and they remain silent until proceedings finish. In more publicized cases, they defer to a Public Affairs Office. Colonels/Captains and Generals/Admirals are trained repetitively regarding their role in the justice process and the realities of UCI.

However, it doesn’t appear that the President read the memo, as he comments on the Bradley Manning situation and pending court-martial (pay particularly close attention at the 47s mark).

Here is a rough transcript, in case the background noise was too much for you (bold type added by me):

OBAMA: So people can have philosophical views [about Bradley Manning] but I can’t conduct diplomacy on an open source [basis]… That’s not how the world works.

And if you’re in the military… And I have to abide by certain rules of classified information. If I were to release material I weren’t allowed to, I’d be breaking the law.

We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.

[Q: Didn’t he release evidence of war crimes?]

OBAMA: What he did was he dumped…

[Q: Isn’t that just the same thing as what Daniel Ellsberg did?]

OBAMA: No it wasn’t the same thing. Ellsberg’s material wasn’t classified in the same way.

OK, so, let’s break this down:

  • The President is the Commander-in-Chief. This is the highest command authority within our Armed Forces.
  • He can commit UCI.
  • “He is guilty.” “…he dumped…”

Come on. Isn’t there some Chairman of the Joint Chiefs of Staff dude that should be holding a leash here? Sure, he isn’t exactly ordering an outcome, and I’m sure he doesn’t mean to influence a judicial proceeding, but UCI can be both intentional OR unintentional. All he had to say was “As Commander-in-Chief, I cannot comment on pending criminal cases in the military.” There you go. Simple.

Now, who knows what might happen. We already know that, if reports are true, a military judge will likely grant a lot of sentence credit for the allegations of abuse and discomfort during Manning’s pretrial confinement (provided they are founded). Now, the Judge must chew on the potential influence of the President’s comments.

Further, we have no idea what forum Manning will choose for his court-martial. He can choose one of three: Judge alone (bench trial), a jury of all Officers, a jury of mixed officers and noncommissioned officers. With this, the potential jury selection would be a nightmare, with defense attorneys taking days (and possibly more) to flush-out any effects of the President’s comments. I won’t even touch the potential appellate issues.

This may be a moot point if Manning initiates a plea agreement or chooses a bench trial. (Note: We must also remember that, even with a Bench Trial, the Military Judge still falls under the authority of the President).  Prior to these POTUS comments, I suspect his attorneys already decided on a method to mitigate the damage to their client through careful pleadings and a possible cap on sentence. With this news, they must completely reevaluate their strategy.

I figured that, in the first couple of days in office, some guy with stars on his epaulettes would sit with the President to discuss things like commenting on high-profile military cases.

I guess not.

H/T to Scott Greenfield, Blawg Review, and FireDogLake.

Package Poetry

Today, I received a brown package.

Inside the package was a USPS Priority Mail box.

Inside the USPS box was a UPS Express box.

Inside the UPS Express box was a DHL Express plastic envelope.

Inside the DHL envelope was a manila folder.

Inside the manila folder was a shotgun envelope

Inside the shotgun envelope was a standard business envelope.

Inside the standard business envelope was something for me.

What a lucky guy I am.

The moral of this story is that FedEx is not invited to the party.

Taking the Pursuit of Happiness

I have a secret to share with you.

For the last 30-or-so years, I’ve been attempting suicide.

In elementary, middle, and high schools, I was told of the importance of a healthy diet. This was reinforced with after-school public service announcements, commercials with the first lady, the Today show, C. Everett Koop, and the government. They all said that a healthy diet is essential to avoid dying from some sudden, massive heart attack. In movies, a recurring motif is a random fat guy eating a cheeseburger, sweating, gasping 1-4 times, and falling dead on the floor. It’s quick, the pain is short-lived, and in a few frames of film, he’s outta here. Plus, it usually accompanies a fantastically tasty meal.

Now, that’s my kinda way to go.

I realized early that life is an extremely harsh punishment for behaving oneself. Perhaps it is the fact that my family skipped a generation, and I attended a lot of funerals before age 10. The conversations at those uplifting events focused on how bad things were for the dead guy/gal and how they are now “in a better place.”

So, I chose food as my express train to get off this rock and to a “better place.” So far, I realize that the government, C. Everett, Hollywood, and Jane Pauley all lied to me. My health is depressingly good. Hell, after countless cheeseburgers, T-bones, and malts, I’m at least owed a decent stroke.

I’m pissed. Somebody’s ass is getting sued for this.

For this reason, I am insanely jealous of guys on death row. The government gives them a place to live (segregated from much of life’s bullshit), and feeds them. No bills to pay. No waiting in line at post offices. No commute. No marathon phonecalls from Aunt Mabel on her recent bladder surgery. No deciding on whether to buy Ketchup or Catsup. Eventually, tubes pump chemicals into their veins and, 10 minutes later, viola! They are out of here. No more suffering from bad drivers, bipolar bosses, Sarah Palin speeches, Joel Osteen, and American Idol. All of those torturous life experiences disappear as the electricity stops in the (now dead) brain.

Lucky bastards.

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