December 18th, 2018

A Lawyer Falls on His Sword

You don’t see me writing about criminal law here for good reason — it’s not what I do. But something happened during the sentencing hearing for General Michael Flynn today that deserves mention.

As many know, he was showing up to be sentenced for lying to the FBI about his contacts with Russians and with regard to statements he made about his involvement as an agent for Turkey. Given that he was Trump’s National Security Advisor, and he was compromised, this was obviously a big thing.

But during the sentencing, press reports were that Judge Emmet G. Sullivan was, shall, we say, a bit irritated. To say the least. He called Flynn’s conduct “a very serious offense” and said he was not hiding his “disgust” at what Mr. Flynn had done. At one point he asked prosecutors if they had considered charging him with treason.

A small part of that anger may have been due to the fact that, prior to the sentence, Flynn’s lawyers suggested he might have been set up, or duped, by the FBI.

And this is the reason that I write on this subject — because it has nothing to do with criminal law but about the relationship between attorneys and clients in general:

At the hearing, Judge Sullivan brought the subject up, making sure that Flynn distanced himself from the comments of his lawyers and fully acknowledged that he knew he wasn’t supposed to be lying to the FBI, even if they didn’t tell him he was the subject of an investigation.

Who’s idea was it to vacillate a bit on the reason Flynn got busted? to suggest that, perhaps, he was somehow entrapped? Lawyer or client? Beats me. But at the hearing it didn’t matter to the lawyer.

At the hearing, to spare his client, Flynn attorney Rob Kelner said his client shouldn’t be punished for the conduct of his attorneys. He fell on his sword; he threw himself under the bus; he bit the bullet. No matter the metaphor you choose, the lawyer owned the problem and told the court the bucks stops with him.

Because that’s what a good lawyer is supposed to do.

July 28th, 2016

Trial Lawyer Tips From Politicians

Watergate jury, by John Hart. The original hangs in my office.

I’ve been watching the political conventions off and on these past two weeks, and it occurs to me that there are a couple good tips in there for trial lawyers.

Two speeches stood out to me as good lessons.

The first was Bill Clinton. Why? Because he is a master story-teller. This isn’t about whether you agree or disagree with his politics, but the manner in which he engaged listeners with stories. He wasted no time in starting with a good old-fashioned boy-meets-girl story and kept coming back to it.

Once upon a time — September 2007, which is 63 years ago in dog years and 200 years ago in internet years — I quoted Mark Twain on this subject, in discussing the need for the trial lawyer to engage the jurors and tell a story. And the most important thing to do is make sure the listener doesn’t fall asleep. You need to engage the listeners.

The second was that of Mike Bloomberg, who I think gave the best speech so far. How can that be when he stands where Bill Clinton just stood as well as both Obamas?

Because he bluntly stated that he wasn’t speaking to the people in the hall and that he often disagreed with Hillary Clinton. That is enough to make any viewer sit up and take notice (and to get many boos from those in attendance).

The fact that he wasn’t a typical cheerleader, and has supported both Republican and Democratic candidates, gave him credibility to address Trump supporters. He wasn’t there to simply yell Rah, Rah, Hillary. He audience was, perhaps, the most important one of all: The undecideds. That meant there was no reason at all to pander to those seated in front of him.

There is a powerful point here for those that stand in the well of the courtroom. When you give up issues to the other side (that you know you will likely lose anyway) your other arguments gain credibility with judges and juries. If you are respected, your arguments are more likely to find a receptive ear.

But not everything works. Because, for many parts of many speeches, people were merely preaching to the choir. Rousing up the folks in the convention halls. While this may be good to motivate those in attendance to work hard over the next few months, they do little to reach the critical undecided vote.

Tim Kaine was also important, but for altogether different reasons. He started out waving his hands around over his head and wasted all of his initial time with shout outs to his friends.

And that is an awful idea. The moments that people are most likely to listen to you, and most likely to remember, are the opening couple minutes of your remarks. And the closing ones. This is the concept of primacy and recency. The most important moments that should never be wasted are the very start and the very end.

After a few minutes of listening, he lost me, and I went upstairs to write this post. I heard later that the middle of the speech was amusing with his parody of Donald Trump, but I never heard it live.

Given that so much time, money and effort is put forward for these conventions to communicate, it’s worth sitting up to take notice of not just what they say, but how they say it. And to remember that when trying to persuade a judge or jury.

February 23rd, 2016

Mark Bennett – Standing in the Well

Mark Bennett, before the Georgia Supreme Court. Yes, that is an actual quote. (Graphic by Marc Randazza.)

Do you ever wonder, when reading a law blog, just how well that writer actually actually practices law? Standing in the courtroom well in front of a jury or appellate panel, after all, ain’t the same as pounding a keyboard.

Yesterday I got to watch one in action, that being Texas criminal defense lawyer Mark Bennett. He writes at Defending People, and is the author of, quite possibly, the most important blog post ever written about potential clients, which is important because it also deals in more general terms with crazy people on the internet. And let’s face, this web has lots of crazy. He gives 10 short Rules.

Anyway, Bennett has a side interest in First Amendment defense, as legislatures often try to criminalize certain speech. He’s successfully argued that several laws are unconstitutional and and has a wish list for more. One of them is in Georgia.

So yesterday found him standing in the Georgia Supreme Court arguing about dirty talk to juveniles (Scott v. The State). I watched from my desk via video feed (found here, last one at bottom).

Bennet was there to say the law was unconstitutional because it was over broad — and the means it may sweep up and affect not only those engaging in unprotected speech, but also those that are engaging in protected speech.

To illustrate his point, Bennet said, in words I never thought I would hear in a high court:

I was a 15-year-old boy, and I don’t believe I was harmed by being sexually aroused. I spent most of my teenage years trying to be sexually aroused.

But I’m not actually here to write today on the legal issue that Bennett covers often at his blog (see Scott Greenfield on the merits), but rather, to answer a simple question: Does this writer have the chops as a lawyer? The problem is that all I ever get to see — all the vast majority of people get to see — is his writing and opinions.

And the answer is a huge, unqualified yes. Bennett was poised, well-spoken, fluid and in absolute command of his material, He quickly (and voluntarily) gave up points that were not important to him instead of stupidly arguing them. The facts of this case? Not important, he said, because his argument had to do with the scope of the law, not the particular facts of the case.

He used language and examples (himself as a teenager) to make his critical point, one that is easily understandable because he wasn’t the only one in that courtroom that was once 15. And he delivered that key argument so smoothly you would think it had just popped into his brain.

I’ve watched many people argue in trial and appellate courts over the years. Compared to others I have seen, Bennett was top notch.

Many years ago I started a category for this blog called Inside the Well, because standing there and talking on your feet and taking questions is a whole different beast than writing. I wrote once, for instance, about one lawyer that fainted in the well.

One of the other links you will find there goes to a piece on Professor Mary Anne Franks, who blocked me on Twitter when I inquired about a cite she had given. This was wonderful stuff because it stood as the absolute, 100% opposite of what a lawyer actually does. If she were actually admitted to practice law, nobody in their right mind would want Franks to represent them.

On one prior occasion I got to watch a law blogger in action, that being Marc Randazza when he came to New York to argue the motion to dismiss in Rakofsky v. Internet, for which I was local counsel and for which Bennett happened to be one of our many law blogger clients that had been sued. He too was terrific standing in the well to argue, with an absolute command of his material.

And so this little post answers a question some of you may have, at least about the particular high profile law blogger. Yes, he has the chops.

February 12th, 2016

Time is On My Side

The AOL 2.0 floppy disk that I use as a drink coaster. Photo credit: me.

Yesterday, I listened to a livestream of a suicidal and paranoid member of the Bundy gang surrender in Oregon. He said he was holding a gun to his head as supporters frantically tried to reason with him as he stumbled through a slew of conspiracy theories.

Think about that — I’m in New York City listening in on a phone call with an armed and suicidal insurrectionist in a remote part of Oregon. What would Benjamin Franklin think? How long would it take for him just to comprehend such a concept?

What a short, strange trip this whole Internet thingy has been.

I first connected via Prodigy, circa 1992. When AOL took the world by storm with its proprietary site in 1993, I was 33. Using their instant messages, you could talk with someone from Prague, in real time, as if that person was sitting in your own building. It was amazing. Revolutionary.

I knew this was going to be huge when hourly charges for dial-up service went to unlimited in 1994, and the site was so overwhelmed that folks couldn’t connect. I still have an AOL 2.0 floppy disk. I use it as a drink coaster.

The World Wide Web followed shortly thereafter.

A huge milestone in its development was the 1998 release to the web by Ken Starr that dealt, in part, with the infamous cigar that Pres. Bill Clinton shared with Monica Lewinsky. I, and countless others, read it online immediately after its release. There was no need to wait a day for the newspapers to print it and distribute it for people to start having intense discussions.

Any semblance of the 24-hour news cycle that Ted Turner‘s CNN and its progeny hadn’t already taken down, was now gone for good.

My first crude website went up in 1999, and this blog followed in 2006. YouTube, Facebook, Instagram, Twitter, Snapchat and more all followed. Again, what would Ben Franklin think?

When I felt my midtown Manhattan building rumble in 2011 as I was sitting at my desk, I turned to Twitter, searched #earthquake, and knew within 30 seconds of the end of the quake that it had been felt from Georgia to Canada. Amazing.

We no longer wait, it seems, for anything.

Except for the law.

Much of what I do, I do the old fashioned way. It is slow and sometimes ponderous. It is the nature of litigation and trial. The world may move ever faster and faster with the explosion of technology, but the pace of the practice of law doesn’t really change.

There might be tinkering around the edges, but fundamentally it is the same today as when I started. Sure, I no longer need to bring a roll of quarters with me to the courthouse while on trial, I can electronically file complaints and motions, and I can bring my entire file to court with me on an iPad. That’s nice; it’s convenient. Of course, as Keith Lee wrote yesterday at Above the Law, technology is just a tool.

But while the expectations of jurors may change — something that law and order TV shows also contribute to — the reality is that the lawyer’s work hasn’t.

You still have to tell the story. And to do that you need to find the witnesses, do the investigations and plow through the records. You need to lay foundations for evidence, build your examinations upon important points, and know what it is you need to do, and where it is you need to go.

There may be a straight line that gets you from Point A to Point B, but just as often it is otherwise, rambling around from here to there to get to where you want to go.

Telling that story usually takes time. Time that jurors, especially younger ones, may not be attuned to.

What to do about this internal conflict between today’s expectations and old-fashioned lawyering? Relish the concept when you finally get to meet your jurors. Welcome them back to another era, and another pace, when things moved slower. If you want to get the job done. (Because you have no other choice.)

Back in September, 2007, I used an obscure quote by Mark Twain to describe the process of slowly telling the story. Given Twain’s mastery of storytelling, I figured he would be a good source.

And so, as the world races faster and faster in making raw information available, we turn back to Twain on the art and flow of storytelling:

Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.

That difference in the expectations of people also came into sharp view in the Oregon standoff, where I started this piece. There were some folks who wanted the buildings that the Bundy gang took over to be immediately stormed. Now! Now! Quicker! Faster!

The Department of Justice, however, took its sweet time. Because time was on its side. And it was a highly successful strategy.

Sometimes we need to move fast. But not always, and fast should not be the default. No matter what kind of technology comes spinning our way.

OK, cue up some Stones to close — though lord only knows what Ben Franklin would think of Mick:

https://youtu.be/QEqlBveP_Rg

July 15th, 2015

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked? What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it. I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

Now I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackled in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:

While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’ve become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness. Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?

———

Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay Wolman @ Legal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)