Lawyering Is About Service, Not Self-Actualization

Around a quarter-century ago I was slouching through Evidence class when the professor called on me and posed a question about the admissibility of some witness statement. I gave a rule-bound answer: the admissibility was governed by a particular rule and would turn on specific factors and in my view weighed in favor of excluding the statement. The professor made a face and said "that wasn't a particularly profound answer." "It wasn't a particularly profound question," I replied, and the class laughed and the professor threw a piece of chalk at me. That semester I got a B- in Evidence (which at that institution was the equivalent of hauling you behind the barracks and shooting you) and an A+ in Tax. Requiescat in pace, my ability to take grades seriously.

The professor was unhappy because he was looking for an answer that interrogated the arbitrary dichotomies between admissible and not-admissible and illuminated the ways that purportedly neutral rules are socially constructed in the context of various social hegemonies and so on and and so forth. I thought all of that was swell but mostly wanted to learn how to try cases. I went on to learn actual evidence elsewhere; the professor went on to have unfortunate experiences trying to apply the rules-don't-matter attitude to actual litigation.

I repeat this story because last week Scott Greenfield and Jordan Rushie curmudgeoned it up about law schools focusing on "social justice" as a subject of instruction. That ideological bent is far more common in modern law schools, but Scott and Jordan could also have talked about schools that seek to impart a Christian view of law or a law-and-economics perspective.

Consider this exhortation by UW students Jordan quotes:

We demand a curriculum more clearly focused on the mission of creating leaders for the global common good. Such courses will provide a foundation of social justice for graduates in careers of all types, and will work synergistically with the demands above.

. . . .

Create and incorporate a new “capstone” course into the 1L curriculum with more big-picture elements of history, philosophy, critical legal studies, implicit bias, and critical race/feminist theory. The traditional 1L curriculum focuses so intensely on the minutiae of case law that it is easy to lose sight of why many of us came to law school in the first place. This course would serve to break the cycle of indoctrination and redirect student focus to the global common good.

This was, more or less, the attitude of Professor Chuck-Chalk: rules and caselaw are mundane, a distraction from Big Ideas about the common good.

Now, I have no objection to students spending three years and $150,000 learning about Big Ideas. How else are we going to manufacture the next set of people to teach about Big Ideas?

But I do have a strong objection to law schools tolerating — let alone cultivating — a disdain of the nuts and bolts of competent law practice. I especially have an objection to that disdain being cultivated in the name of "social justice." People traditionally recognized as being in need of social justice are also the people in most dire need of competent legal representation. When they have a few days to contest an eviction or they've been arrested and may lose their job, they don't need someone who is exquisitely prepared to explain and denounce the racist and oppressive structures that led to their unfortunate predicament. They need someone who knows what he or she is doing. They need someone who knows all of the petty substantive and procedural rules of landlord-tenant law and how the local court actually operates. They need someone who can swiftly assess whether an arrest or interrogation was unlawful and formulate a plausible and effective plan for dealing with it. They need someone who knows how to get things into evidence in court even under pressure on their feet when the judge is being difficult and the opposing counsel is making nonsensical objections. They need a grubby little practitioner.

People are quicker to understand this in other contexts. If a hairdresser could argue movingly that gendered hairstyles are based on antiquated stereotypes, but had no idea how to cut hair, people would generally accept that he was a poor hairdresser. If you encountered a woman in labor experiencing dangerous complications who had been too poor to get prenatal care, you'd seek a skilled high-risk pregnancy physician, not someone who had focused on learning what socioeconomic forces deprive poor women of adequate care. But for some reason — perhaps because so many dramatic social changes have come through the legal system — people don't seem to understand that lawyering requires actual tradesman skills too. Thurgood Marshall appealed to social justice when he successfully argued Brown v. Board of Education before the Supreme Court, but he didn't get there by Big Ideas alone; he got there by developing the sort of meticulous legal skills that led to an almost unprecedented win record before the court. He worked, and he didn't think he was too good to grub around with rules and precedents.

Our system is mediocre at best at delivering justice to society's least powerful. Do you want to be able to explain why? That's fine, go do that. But if you plan to address social injustice as a lawyer by actually representing its victims, it is absolutely perverse and self-indulgent to focus on theory rather than skills and rules.

Living To Make A Difference

I was over 40 the first time something I wrote was published. The first thing I did was send an email to my high-school English teacher, Kathi Condell.

Ms. Condell — that's how I continue to think of her, even after she married again and demanded that I call her Kathi — taught several of my literature and writing classes. That was 30 years ago now. Her lessons remain. I remember them when I think about what I read and when I consider how and what to write.

Kathi Condell had a gift for connecting with teens. She was supportive without being indulgent, and age-appropriate without being condescending. She had high expectations, and conveyed a quiet confidence that those expectations were reasonable and achievable.

More than that, she taught literature and writing not as means, but as ends. Everyone knew you had to write well and get good grades to get into a good college, and get a good job, and so forth. Everyone understood the grind, particularly at a school like mine. But Kathi Condell believed we should be well-read because we loved reading, that we should reflect on what we read because it was meaningful and pleasurable, and that we should treat writing as a form of artistic expression, not merely a tool. She helped teach me that writing could be useful and expressive at the same time.

I wanted to be a lawyer from a very young age. She was always respectful of that goal, but always encouraged me to think about writing as an art whatever I did as a job. As I graduated college, and law school, and moved from job to job, she congratulated me but always asked me "but what are you doing to write?" For many years I wasn't doing much. That's why it felt so good to tell her that I was making an effort to write for writing's sake. I wanted her to know that she'd been right, and that I remembered.

Kathi Condell Herroon passed away Monday. I love to write, and that's because of two people — Kathi Condell, and my father. Thank you.

What if we could all live so that thirty years down the road, people we've touched want to share news with us about what we've helped them achieve?

Judge Lisa Gorcyca Doesn't Hate Kids. Judge Lisa Gorcyca Hates Failure To Submit.

Judge Lisa Gorcyca, a judge in Oakland County, Michigan, is getting quite a lot of press this week for sending three kids to juvenile detention.

Judge Gorcyca doesn't preside in criminal court. She doesn't rule on delinquency petitions in juvenile court. She's a judge in the Family Division. And she sent three kids to juvenile detention — and specifically ordered them separated — because they didn't obey her orders to cultivate a warm relationship with their estranged father.

[Read more…]

Incessant Sewer-Dweller LegalMatch Has A Cunning Plan To Get My Business

Late yesterday I saw a new email in my inbox. The subject line caught my eye:

Son under indictment

A new case? One never knows. I opened it.

I found not a new client, but an old friend: one Steve Kramer of LegalMatch, a "service" that purports to help match clients to lawyers. I've written before about emails from Steve Kramer and LegalMatch in unflattering terms. For reasons I cannot recall I previously did not name them; I referred to them with thematic accuracy as Feculent Q. Pus-Crust of the Society for Cornholing Unsuspecting Children. I'm naming them now.

Feculent — pardon me, Steve — has continued to spam me even after threatening me with litigation for criticizing him and even after I reminded him that he was spamming someone he had previously threatened.

Here are some of the email subject lines Steve Kramer has sent over the last two years:

Son under indictment (3/11/15)

My son has been charged with statutory rape (11/25/14)

intent to distribute (11/13/12)

felony arrest (1/4/12)

No, Steve Kramer's son is not — so far as I know — a one-man crime wave. Rather, Steve Kramer and LegalMatch use deceitful clickbait email subjects to get lawyers to look at their spam. As his latest says:

Ken

Let me know whether the following snap shot of some of our recent financially capable LA area criminal defense clients looks like a fit.

Cordially,

Steve Kramer
For Legal Match
310-990-3026

It's nice that Steve Kramer is so forgiving that he's still first-naming me after I've sassed him and written mean posts about him.

Emails from Steve-O and Legal Match contain a sort of list of client inquiries that consumers have apparently left on LegalMatch.

EX FELON WITH POSSESSION OF FIREARM
BELL, CA 02/16/2015 C154733487378

FREE MY SON
AUGUST F. HAW, CA 02/16/2015 ✔ C154721465270

VIOLATION OF PROVATION
SAN FERNANDO, CA 02/15/2015 ✔ C154646769498

LEAVING THE SCENE OF A ACCIDENT
LYNWOOD, CA 02/15/2015 ✔ C154643116086

2SUSPECTS TRAFFICKING 48LBS OF DRUGS
LOS ANGELES, CA 02/14/2015 ✔ C154536359337

Steve and LegalMatch represent in their solicitation that somehow they have determined that these people are "financially capable" — meaning, I guess, that they can afford to hire a lawyer. In any litigation I look forward to discovering what methodology they used to evaluate the assets of the "violation of provation" guy. They also represent that these are "criminal defense clients." Yet the emailed lists includes entries like this:

FREON EXPOSURE WORKING AT GENERAL DYNAMICS 80'S.
WALNUT, CA 02/09/2015 C154071310246

Perhaps this person has been criminally charged with exposing himself or herself to freon at General Dynamics in the 1980s. I presume they will explore a statute of limitations defense.

LegalMatch views its system — where people describe their cases, to be reviewed by potential lawyers — as a service to the lawyer-seeking community. Whether it is also a boon to the law enforcement community remains to be seen. It encourages customers to leave entries like this one in the most recent solicitation email:

ACCUSED OF MURDER OCCURRED IN SELF-DEFENSE ROLLING HILLS ESTATES, CA 02/10/2015 ✔ C154102776952

Who read that? Well, apparently, any LegalMatch lawyer with access to that client database, and any prospective LegalMatch lawyer to whom Steve Kramer sent the email. All of those people now know that there is a person accused of murder in or near Rolling Hills Estates, California, in February of 2015, who says they did kill the person but did so in self-defense. Did they get legal advice before making that disclosure? Did they think that the disclosure would be kept confidential? Did they know it would be sent out in spam emails? Would a court treat such an entry as privileged, despite how recklessly it is being bandied about? Is LegalMatch certain that it didn't sent this information to anyone with connections to the victim, or the victim's family's lawyers, or the prosecutors, or the investigating officers, or the media? Do you think that — assuming this is a real case — the media would be interested in hearing that the accused was admitting to having killed the victim but was asserting self-defense?

Of course, if that entry is entirely fabricated, I suppose it's not so much an amoral and reckless disclosure by LegalMatch as it is false advertising.

I've written to Steve Kramer, LegalMatch's press office, and their general counsel asking some questions.1 Among them is this question — does LegalMatch think that it is not bound by the CAN-SPAM Act, which (as LegalMatch's blog will tell you) prohibits misleading subject lines and requires clear opt-out-of-this-spam systems?

LegalMatch is not the only turd in the beclouded punchbowl of the legal marketing community. But, despite vigorous competition, it is one of the oldest, most noisome, and most persistent turds. Steve Kramer has been pestering the unwilling about LegalMatch for years, and LegalMatch has been using sleazy tactics (and promising to improve them) for a decade.

Yet LegalMatch continues to thrive. That means some lawyers out there are paying them. Those lawyers are equally responsible for perpetuating these practices. And the clients — oh, the clients. Citizens, know this: if you hire someone through LegalMatch, you're hiring someone desperate or stupid or cynical enough to accept this bad behavior.

Back in 2012 I told Steve Kramer "Remove me from your spam list forthwith." Perhaps this post will help get results.

Why Is a British-Recognized Esquire Asking Questions in an American Court?

I think I've mentioned that I don't acknowledge the legitimacy of the US government for Spooner-like reasons, and I consider most LEOs thugs.

…and yet, after watching this, I find that there's a part of me – a very small part – that really just wants to curb-stomp Natural Law protesters.

Get off my lawn side, you damned hippie kids!

Tales From Another Shutdown

In Fall 1995 I was a brand-new federal prosecutor, handling the simplest cases available at the U.S. Attorney's Office in Los Angeles — no-weapon bank robberies, relatively minor drug mules, and aliens returning after deportation.

Congress and the President clashed, and when the shutdown hit in November, federal agencies suspended "non-essential" activities, a classification that was not entirely rational. Oddly, rookie federal prosecutors were deemed "essential," though only in the sense of being required to come to work, not in the sense of enjoying any guarantee of being paid for our work. The agencies we worked with – particularly the INS, as it was called then — were much harder hit. Many of the agents we were supposed to rely upon as witnesses or as case agents (that is, the lead agent in a matter who would coordinate government and civilian witnesses coming to trial) were furloughed.

I had a trial — a 1326, if memory serves — scheduled in December, with a status conference in November. The public defender representing the defendant wanted a continuance, and — since my government witnesses and case agent were furloughed — so did I. I arrived at the hearing unconcerned. How could the judge not see that it was impossible for the lawyer for the government to put a case together with government witnesses furloughed, and how could a judge fail to grant a continuance when the defense wanted one as well?

The late judge Edward Rafeedie barked at me for several minutes, telling me that (1) I was "making up" the government shutdown and furlough, (2) my explanation of why I could not muster a case with the requisite government agents was "double-talk," and (3) I only wanted a continuance because I was just "lazy." No continuance.

Hence the government shutdown of 1995 taught me valuable lessons about how I should regard all three branches of government.

Today In Stunt Marketing: FATTY FATTY FAT FAT

Back in April I noted that a prominent court reporting firm had started marketing by spamming me with somewhat unsettling short stories. Today I see a private investigation firm is taking the same approach.

I just received an email from this firm — familiar to me, and probably to many in Southern California — with a very brief subject line:

FATTY

Well, I thought. Fair enough, but I don't see why someone needed to hire a private dick to figure that out.

But the email was not a j'accuse — the subject line was intended as an attention-grabber, referring to the street name of a character in the possibly-true story that followed about how this firm uncovered an insurance cheat, ending with a pitch for their services.

Did the subject line grab my attention? Yes it did.

Will I ever use this private investigation firm? No. I forwarded the email to my office. The reactions were universal: "creepy" "pathetic" "unprofessional" "ugh".

No sale.

Popehat Poll: How Irrritating Is It For A Lawyer Not To Have A Listed Email Address?

I was thinking of writing an email seeking comment from a lawyer who threatened someone. But despite being a lawyer who threatens people with lawsuits (by phone), this lawyer doesn't seem to have a web site, and doesn't seem to have an email listed anywhere publicly. It's not on her State Bar profile, not on any of the various referral or rating sites, not anywhere easily accessible.2

This irritates me. I recognize that I am well behind the curve on technology. I recognize that my firm's web site was just a static under-construction placeholder with contact information for years. But when a lawyer makes it difficult for me to find their email address, I am immediately suspicious and annoyed.

So. How obnoxiously snobbish is that?