The Irreverent Lawyer

Math-challenged lawyers and unfunny judicial opinions.

lawmrh — Wed, 15 May 2013 03:52:46 +0000

A lawyer who’s good at math is about as common as a judge who writes intentionally funny judicial opinions. Both are as rare as a pretty frog in a pond.

Of the mathematically challenged lawyer ignoramus et ignorabimus, last fall, Chief Justice John Roberts, redounded with obviousness, “I think there are a lot of people who go to law school because they’re not good at math and can’t think of anything else to do.”

For lawyers at least, it was no surprise when lawyer and senior Internal Revenue Service official Lois Lerner lamely blurted out,“I’m not good at math,” at last Friday’s damage-control news conference following revelations the IRS had targeted tea party groups. “Not good at math”? Among lawyers, such blinding obviousness is self-proving without an affidavit.

As for the matter of the judicial funny bone, Justice Roberts did not, however, impart his views on the subject.

Suffice it to say, though, that when it comes to judicial funnies, those who find mirth in a judicial opinion are either bone-dry law professors or sycophantic lawyers in the grip of what Max Boot calls “gavelitis” when all judicial “witticisms are suddenly hilarious.”

By deign of their vocation, the former need a footnote to source a sense of humor while the latter are necessarily compelled to react with the sincere insincerity of the employee who laughs uproariously at the boss’s bad jokes. Think I’m kidding? Try and find something to smile about — much less laugh at from Judges Say the Darndest Things: FindLaw’s List of the top ten funny, quirky or downright weird judicial decisions.

Kudos, though, to University of Louisville Law Professor Judith D. Fischer who to her immense credit of “humor in courts’ opinions,” says, “Most of its examples strike me as contrived and un-funny.”

Unlike math, humor isn’t something you learn. You can’t teach someone to be funny. Or to quote Robert Heinlein, “Never try to teach a pig to sing; it wastes your time and it annoys the pig.”

The unfunny court.

With a hat tip to Matt Ence, this gets me to one more instance of a frustrated humorist in black robes. It’s U.S. District Chief Judge Fred Biery of San Antonio and his corny, pun-filled, double-entendre-replete opinion denying a preliminary injunction to a strip club challenging a sexually oriented business law.

The judicial order, 35 Bar and Grille v. City of SA – Order Re Prelim Injunction Part I, begins, “An ordinance dealing with semi-nude dancers has once gain fallen on the Court’s lap.” And after a drum roll and crickets sound, it goes on from there — with references to “alleged naked grab of unconstitutional power” and an adversely impacted “bottom line” and that “the ordinance would strip them of their profits.”

“To bare, or not to bare, that is the question,” he adds. Which should prompt a better question, ‘Instead of a judge turned comedian, why wasn’t Henny Youngman a judge instead of a comedian?’ Which recalls this Youngman chestnut: A drunk was in front of a judge. The judge says “You’ve been brought here for drinking.” The drunk says, “Okay, let’s get started.”

But back to Judge Biery whose Order concludes, “Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending. It is so ordered.”

To be fair, Judge Biery’s opinion managed a groan from St. Mary’s University Law Professor Michael Ariens who told the press, “I think Judge Biery’s decision is correct as a legal matter. But his opinion fails if he was attempting to be witty or attempting to write ‘tongue in cheek,’ and his use of double-entendres largely fails as humor and appears almost intended to offend.”

Conversely, the legal website, Above the Law, glowed effusive, “The Chief Judge produced over seven pages of genius double entendre . . . which he entitled “THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE.”
Also see “The Itsy Bitsy Teeny Weeny Bikini Opinion: Texas judge issues world’s cheekiest ruling.”

And concurrently, another U.S. District Judge in search of a funny bone cracked wise by using Star Trek references to sanction four lawyers in an Order quoting Mr. Spock.

Also see “Should Judges Make Jokes?” :: Minnesota Law & Politics and “Judges Include Puns, Humor in Opinions” – WSJ.com

Truth be told, what’s funnier are the instances of unintended humor.

Fear not.

Like Cher, who said she only answers to two people, “myself and God,” judges — especially those with lifetime appointments probably fear only the Almighty.

As for the context of their purported humor, it makes little difference. Whether off-color judicial opinion or improper email, “The perfect judge fears nothing.”

Take, for instance, the investigation of now retired U.S. District Judge Richard Cebull, forthwith declared “moot” as far as the 9th Circuit is concerned, fulfilling thereby the prognostication: “After the din, not much will happen to racist email repentant Judge Cebull.”

But contrast the occasionally more accountable elected state court judges like Dakota County, Minnesota judge Richard Spicer — just reprimanded for making “insensitive” jokes in court.

Among Judge Spicer’s supposed witticisms was his wisecrack on being told of the consecutive ages of a juror’s four children, “Well … you weren’t shooting blanks. We know that much.”

All this self-evidently giving testament that unlike Jerry Seinfeld, judges can indeed — be not funny.

______________________________________________________________

Photo Credits: Male of Rana temporaria, byPiet Spaans Viridiflavus at Wikipedia Commons; Laughing Fool, source http://www.wellesley.edu/DavisMuseum/collections/provenance_research.htm at Wikipedia Commons, United States public domain tag; Leonard Nimoy and William Shatner as Mr. Spock and Captain Kirk from the television program Star Trek at Wikipedia Commons, public domain;Stańczyk by Jan Matejko at Wikipedia Commons, public domain;Lightning Strike, by Lars Kasper at Flickr via Creative Commons-license requiring attribution; The Scream, by Edvard Munch at Wikipedia Commons, public domain.

Spin doctors, sock puppets and the cost to practice law.

lawmrh — Fri, 26 Apr 2013 03:49:06 +0000

So last week a young Washington State lawyer tells God and everyone else on a listserv that he’s tossing his shingle into the sock drawer and moving on — all because he can’t afford his annual bar dues.

Seems a tad drastic after spending so much time, sweat, and treasure to become a lawyer. But then, understandable when expenses keep overtaking income and the Sisyphean boulder doesn’t stop rolling back down the hill.

Ironically enough, his move comes even after lawyers in his jurisdiction saw fit to vote to cut their bar association dues from $480 to $325. This was no easy feat either — even though the usual crony cast of insiders, stakeholders, apologists and true believers gnashed their gums in disbelief and dismay.

“We’re all sitting here just going “Wow,’” said one bar association program manager. And according to one report, the reduction amounts to $3.6M or 25% of the bar’s budget. “Oh the humanity!”

Spin-doctoring.

And so the hand wringing went on, even after spinning the news coverage over how “fewer than half of eligible lawyers voted . . . and by a slim majority – 52 percent -” voted to reduce their dues. And the point?

After all, the referendum election did garner 12,339 participants or about 44% of all lawyers in the state and of that number, 6,416 lawyers or roughly one-fifth of all Washington State Bar Association lawyers voted “YES” to roll back dues. U.S. Presidents win popular elections by margins less than that.

But poll-spinning isn’t an art form limited to politicians. Last November, for example, the Arizona Bar’s sock puppet, Arizona Attorney Magazine, ran a front page story “We’re Happy,” citing how happy and satisfied Arizona lawyers were — based on survey responses from barely 4% of its 17,200 active members. That thin reed was deemed front-page news — even though not long before the economy really cratered, a survey by the American Bar Association belied the Arizona Attorney magazine’s hallelujahs. Almost half of the lawyers surveyed by the ABA reported career dissatisfaction and only 4 in 10 lawyers would recommend a legal career to others.

A dinghy of exemption.

So you’d think one lawyer throwing in the towel would hardly be news. And even though under WSBA Bylaw Article III, Section H.5., Washington lawyers can apply for one-time hardship exemptions in case of “proven extreme financial hardship.”

But when prospects haven’t been good for a while, a one-time exemption is a rubber dinghy in a vast troubled sea.

Indeed, up until the April 2012 rollback referendum and the dues reduction effective January 17, 2013, Washington enjoyed the dubious distinction of being 8th highest on the list of “Ranking By Cost to Practice in Each State.”

As a matter of fact, in proponents’ Statement for the Referendum – Washington State Bar Association, the rationale was explained, “The dues rollback referendum was started because mandatory annual fees imposed upon Washington lawyers exceed those charged to lawyers in most other states. In addition, the WSBA is making inefficient use of money and is not being totally open with members about where the money goes.

“Our Board increased fees when an economic crisis was underway, despite hardships of members who are unable to find professional work and struggling with student loans and mortgages.”

“Let them eat cake!”

Added one Bellevue, Washington solo practitioner, “Sixty percent of the lawyers in Washington are solo practitioners who aren’t making big bucks. It doesn’t seem as if the bar really took the cries of their members seriously. We were saying, `We need you to tighten your belt, and you’re telling us no.’”

But then invoking my favorite aphorist, François de La Rochefoucauld, state bars “all have strength enough to endure the misfortunes of others.”

The Rankings.

But Washington was only 8th highest. As of 2010, ahead of “The Evergreen State” on the annual dues hit parade was No.1 Connecticut at $675; No. 2 Tennessee at $570; Georgia in 3rd at $536; New Hampshire in 4th place at $520; Hawaii at No. 5 with $501; and Alaska and Texas tied at No. 6 with $501 and then No. 7 Oregon at $500.

And rounding out the top ten were Wisconsin at No. 9 at $472 and No. 10, the Grand Canyon State of Arizona at $460.

Staffer-to-member bloat.

And then there’s member-to-staff ratios, which are important when you wonder where all that money goes. You wonder, too, for example, how as its Executive Director Karen A. Gould explains, the Virginia State Bar, in 2010 the fifth largest mandatory bar in the country has the fifth lowest dues of mandatory bars at $275. And yet, it manages to serve its 45,000 members with a member-to-staff ratio of 478 to one, placing it 22nd on the member-to-staff list.

And then there’s 10th highest cost Arizona, which comes in first with a tumefied ratio of one staffer to 158 members.

“Some things are just too coincidental to be a coincidence,” said Yogi Berra. Nonetheless, for the cost of $75, anyone with an interest in the data on membership dues, administration and finances of 181 responding state and local bars, including total cost to practice in each state, membership dues levels, dues increases, membership retention, etc., can buy the “2011 State and Local Bar Membership, Administration, and Finance Survey e-Book.”

______________________________________________________________

Photo credits: “Gillie in one of his resting places,” by Dwight Sipler, photofarmer, at Flickr via Creative Commons-license requiring attribution; “Sisyphus” by Titian, Prado Museum, at Wikipedia Commons, public domain; “Nadya with sock puppet and fish, 2007″ by Nadya Peek at Flickr via Creative Commons-license requiring attribution; “Rubber dinghy,” by Ben Sutherland at Flickr via Creative Commons-license requiring attribution; “an unwitting victim…bwahahhahahaa,” by bark at Flickr via Creative Commons-license requiring attribution; “Let them eat cake!” by Alaskan Dude, Frank Kovalchek, at Flickr via Creative Commons-license requiring attribution; “Sleepy Head,” by Ben Salter, Capt’ Gorgeous, at Flickr via Creative Commons-license requiring attribution.

There’s no passing up a good body slam to make a point.

lawmrh — Sat, 20 Apr 2013 03:41:01 +0000

Long time readers know there’s no better way to illustrate judicial body slams, choke-holds and slap-downs than with images from professional wrestling.

Maybe it’s a throw-back to my childhood when I found the over-the-top histrionics of yesteryear’s grapplers and brawlers so hilariously fascinating. Who cared if it was all fake? Who would tell a 12-year old?

However, there’s nothing fake about what some members of the berobbed do to the clueless, rude, ill-prepared or the plain unlucky appearing in their courtrooms. Or that it’s not deserved when they can’t get out of their own way.

And I’m not just talking about the lawyers. Litigants may also find themselves facing the judicial wrath.

And it must also be acknowledged that sometimes the head-drops go the other way, as with the recently announced suspension of Putnam County Judge William “Chip” Watkins III.

What hastened Judge Watkins’ travails is ascertainable from the video clip below — viewer discretion advised.

Also see, for instance, Judge Martin McDonald’s “I’ll strangle you.”

A ‘Hall of Fame.’

All this said, then, it’s no surprise that I took particular delight in acquainting myself earlier this month with the artistic license of a Georgia personal injury lawyer by the name of Jamie Casino. I’ll be darned if Casino doesn’t like those spandex-wearing body-tossing rasslers as much as anyone!

An obviously enterprising fellow, he must surely warm the gasconading cockles of the hearts of other passionate lawyer advertisers — such as the many “Battling Hammers” – not the least being rapping Lowell “The Hammer” Stanley or of other notable quotable personal injury client hawking luminaries.

By comparison, the stereotypical ”I will fight for you” advertisers seem almost staid. So much for cliché over creativity or the good, bad, and ugly of attorney advertising.

Still it has to be said here that for lawyers who see themselves as part of a noble profession — nay, who may be besotted with a self-image redolent of a rarefied priesthood, well those sacerdotal practitioners will always get their cassocks in a bunch over the audacious advertising antics of their earthier colleagues.

That’s too bad. After all, if there’s any justice in such matters, the commercially capering counselors ought to at least have their own ‘Hall of Fame’ if for nothing else, the entertainment value they bring to the public.

____________________________________________________________

Photo Credits: Wrestling Match, May 1938, by Russell Lee (for the Farm Security Administration) at Wikipedia Commons, public domain; “Austin Aries performs a brainbuster on Mark Haskins during the Impact! taping on January 28, 2012 in Wembley, England.” by Ed Webster at Wikipedia Commons, via Flickr Creative Commons Attribution 2.0 Generic; “El Hijo De Santo vs Blue Demon Jr,” by danksy at Wikipedia Commons, via Flickr Creative Commons Attribution 2.0 Generic.

Are Appointed Judges Really More Virtuous?

lawmrh — Mon, 15 Apr 2013 19:07:56 +0000

(Dan Pero’s timely, well-written Op-ed dismantles the specious argument for the supposed magic cure of judicial merit selection. When it comes to judicial selection methods, there’s no such thing as perfection. Reblogged with express permission)

Are Appointed Judges Really More Virtuous?

By Dan Pero

Blogger at American Courthouse and President of the American Justice Partnership, which promotes legal reform at the state level.

The conviction of Pennsylvania Supreme Court Justice Joan Orie Melvin on public corruption charges has unleashed a torrent of hand-wringing about the need to end democratic judicial elections. Four former PA governors have now come out in support of a bill to adopt “merit” selection, where the governor would appoint a judge from a slate of nominees hand picked by a commission stacked with elite lawyers.

It would be nice to think that ending elections would magically make our public servants more virtuous, but there doesn’t appear to be any real evidence to support this case.

In Florida a few years back, Judge Thomas E. Stringer, Sr. resigned from office after it was discovered he was helping a stripper hide over $315,000 in assets from her creditors. Stringer later pled guilty to bank fraud.

Also in Florida, in 2011 District Court Judge Paul Hawkes – known as the “Taj Mahal judge” – resigned from office amid questions about the construction of a $50 million marble and mahogany-laden new courthouse he helped oversee. According to news reports, Hawkes was accused of destroying public records related to the court’s budget and pushing furniture vendors to pay for a trip for Hawkes and two relatives.

Even federal judges, who undergo intense scrutiny in appointment, including a rigorous review process by the American Bar Association, are not immune to scandal.

Judge Thomas Porteous of the Eastern District of Louisiana was impeached by the U.S. House of Representatives and convicted by the U.S. Senate following evidence he had taken bribes from local attorneys and businessmen with cases before his court and later lied about his actions to the FBI.

Then there’s Judge Edward Nottingham of the U.S. District Court of Colorado, who reportedly ran up a $3,000 bar tab at a strip club, used his government-issue phone to make “dates” with call girls, and spent hours cruising porn sites on courthouse computers. One self-described prostitute claimed Nottingham coached her to “lie to federal investigators” about their relationship.

Each of these judges was appointed, rather than elected, some under the so-called merit selection system Marks and other anti-election proponents support for Pennsylvania. Marks says this new system is needed because judges seeking election often receive campaign contributions from lawyers and special interest groups who may appear in the courtroom.

Yet if the problem is too much influence by lawyers, it’s hard to see how merit selection will solve it.

Merit selection proposals in Pennsylvania call for the creation of a 15-member Appellate Nominating Commission, with seven “public” members and four each appointed by the Governor and the General Assembly. The experience in other states suggests these nominating commissions quickly become dominated by legal special interest groups.

A few years back in Missouri, the birthplace of merit” selection, the former President of the Missouri Association of Trial Lawyers was nominated to fill a vacancy on the state Supreme Court – a nomination made possible by a merit selection commission that included both a former and current board member of the Missouri Association of Trial Lawyers, plus the wife of one of the state’s most prominent trial lawyers. As a Wall Street Journal editorial put it, rather than producing judges based on merit, Missouri’s selection process has “handed disproportionate power to trial lawyers and state bar associations,” resulting in a system that “elevates nominating commission cronies.”

It’s hard to see how a merit selection commission dominated by lawyers meeting in the proverbial smoke-filled room addresses the problem of too much potential special interest influence.

The point here is that every system for selecting judges – democratic elections, appointment systems, merit selection – will produce both good and bad judges. Public corruption will be around as long as there are public servants. The key is to keep the judicial selection process open, transparent and accountable. Merit selection accomplishes none of these goals.

______________________________________________________________

Posted at American Courthouse, the personal blog of Dan Pero, March 18, 2013. Reblogged and reposted with express written permission of Dan Pero, April 15, 2013.

Content was also posted April 8, 2013 at The Philadelphia Inquirer, Philly.com, ‘Merit‘ picks have flaws too.’

______________________________________________________________

Photo Credit: Signage on the exterior of a strip club in Los Angeles, California, USA., at Wikipedia Commons via Flickr, author Rick Hall,
Creative Commons Attribution 2.0 Generic license.

Faith, the Kardashians, and Free CLE.

lawmrh — Sun, 14 Apr 2013 21:10:50 +0000

Certain things will remain eternal mysteries to me. Take, for instance, the tension between free will, predestination and an omniscient God — concerns that first troubled me as a parochial school boy.

My smart mouth annoyed the nuns no end not least when I posed the conundrum of our supposed unfettered will versus God’s infallible foreknowledge.

In religion class, I raised my hand and asked Sister Estelle, “If God knows and sees everything, including what we’re going to do — how is it we’re supposed to have free will?”

Sister Estelle’s answer was “To have faith,” which of course, was as much an explanation as J. M. Barrie in Peter Pan explaining that “All the world is made of faith, and trust, and pixie dust.”

Not till much later did I find infinitely more solace and satisfaction from Alexander Jablokov’s pithy “The road to truth is long, and lined the entire way with annoying bastards.”

Speaking of which, I will continue scratching my furry head over people’s fascination with all things Kardashian, especially the recent tabloid headlines that the congenitally protuberant but now excusably pregnant Kim is allegedly tipping the scales at 205 plus lbs. Why is this news? Better yet, “Who cares?’

Of considerably greater interest has always been Kardashian paterfamilias and O.J. Simpson attorney, the late Robert Kardashian and the answer to the question, “What was Robert Kardashian carrying in that bulging Louis Vitton garment bag?” Hmmm, what’s the more substantive Kardashian inquiry? Binging on sweets or bloody clothes and a knife? Also see “Background Facts on O.J. Simpson Case . . . .”

FREE CLE.

“The best things in life make you sweaty.” - Edgar Allan Poe

Fortunately, not all life is a mystery. We don’t have to worry our pointy, pretty little heads, for example, over one thing and that’s that I will continue posting on FREE CLE.

The latest roundup follows:

_______________________________________________________________

**Downloadable Webinars – Upchurch Watson White & Max**

A dozen complimentary CLE programs on alternative dispute resolution for Florida CLE Credit. Presented by Upchurch, Watson, White & Max, a Florida and Alabama based professional association of mediators.

________________________________________________________________

Practising Law Insitute (PLI)

Violence Against Women Act 2013

April 29, 2013, 1-2pm ET

Violence Against Women Act 2013 (Audio-only)

The history of VAWA
Expanded protections under VAWA 2013
Immigration Provisions of VAWA 2013

Supreme Court’s 2012 Blockbuster Term: Review of Major Cases -

(Audio-only)

May 2, 2013, 1:00 pm – 2:00 pm (E.D.T.)

Dean and law professor Erwin Chemerinsky reviews the major cases from the October Term 2012 docket, including:

Maryland v. King
Fisher v. University of Texas, Austin
Shelby County, Alabama v. Holder
Hollingsworth v. Perry
United States v. Windsor
Kiobel v. Royal Dutch Petroleum

______________________________________________________________

Courtesy of a tip from a Wisconsin lawyer friend who earned 3 continuing legal education credit hours for the following: “Eichmann Prosecutor Interview: A Conversation with Justice Gabriel Bach, Senior Prosecutor in the Adolf Eichmann Trial.”

Eichmann Prosecutor Interview

Frank Tuerkheimer

Law Professor Emeritus

University of Wisconsin

Wisconsin lawyers will likely have to submit a request for CLE credit via CLE Form 2 – Wisconsin Court System.

______________________________________________________________

Webinar – Attorney Protective

Title:	Great Procedures to Reduce Risk
Date:	Wednesday, May 22, 2013
Time:	1:00 PM – 2:00 PM EST

Reserve your Webinar seat now at:

https://www1.gotomeeting.com/register/436025096

_____________________________________________________________

ARDC, “Illinois Attorney Registration & Disciplinary Commission”

New Trends in Lawyer Regulation: Illinois (Part I) Recorded Webinar (posted March 15, 2013) (1 Hr. MCLE/PCLE Credit in Illinois) CLICK HERE
New Trends in Lawyer Regulation: National (Part II) Recorded Webinar (posted March 15, 2013) (1 Hr. MCLE/PCLE Credit in Illinois) CLICK HERE

______________________________________________________________

The Lawyers Guide to Technology CLE Course - Online Webinar (1:04:37)
1.2 Credits (General)

“This free CLE course will give you the ability to streamline your office technology, increase your billable hours and increase firm productivity overall.”

Download Rekall Course Materials (PDF)

The Ethics Behind Client Data Security – Online Webinar (1:16:28)
1.5 Credit (Ethics\Professionalism Or General)

“This free CLE course gives you all the successful technologies that you need to work with in order to fulfill your ethical obligation to your clients, your colleagues, and the court. We explain the relationship between technology and ethics and show you ethical technology solutions and less ethical options for you law firm, we also explain possible consequences when working with less ethical technologies and client data information.”

Download Rekall Course Materials (PDF)

______________________________________________________________

Photo Credits: “Edgar Allan Poe Pop Art, ” by Chelsea Daniele at Flickr via Creative Commons-license requiring attribution;”How many nuns does it take to change a light bulb?” by kevin dooley at Flickr via Creative Commons-license requiring attribution; “Nuremberg Trials,” Wikipedia Commons, public domain.

“I’m shocked, shocked — to find that churning is going on in here.”

lawmrh — Fri, 29 Mar 2013 13:00:04 +0000

Casablanca — a story about a man caught between love and virtue came to mind this week after reading that law firm client Adam Victor had sued his lawyers over an allegedly inflated legal bill.

Not that a fee dispute between a lawyer and his client is anything new. All the same, I couldn’t help but recall that classic movie and particularly, Vichy Captain Louis Renault’s quip about how disingenuously shocked he was to discover gaming going on in nightclub owner Rick Blaine’s “Rick’s Café Américain.”

“I’m shocked, shocked to find that gambling is going on in here,” Captain Renault said as a croupier hands him a pile of money. “Oh thank you, very much.”

Interestingly, in the original play upon which the film was based, “Everybody Comes to Rick’s,” nightclub owner Rick Blaine was a lawyer. Always — with the lawyer.

But when it comes to love and virtue, and specifically love of money and virtue over fees — what to make of seeing lawyers again in a bad light?

And lawyers accused of overbilling? Should we be “shocked, shocked”? Hardly the novel recrimination — not when you consider that when it comes to whether fees are excessive, you have to shock a lawyer’s conscience.

So much, too, for embarrassment or for thinking of Philip Dormer Stanhope Chesterfield’s rejoinder against the Lord Shaftesbury’s “ridicule is the best test of truth; for that it will not stick where it is not just.”

“Churn that bill, baby!”

When the world’s largest law firm, DLA Piper, sued their client over $675,000 in unpaid legal bills, Adam Victor did what all clients do when pressed. He countered. In his case, he accused the firm of the “sweeping practice of overbilling.”

And thanks to pretrial discovery, disadvantageous exasperations happen. Once the firm turned over internal communications to Victor’s lawyers — the Bandini hit the fan.

Take DLA Piper lawyer Christopher Thomson’s email, which said of a colleague working on Victor’s bill, “Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode. That bill shall know no limits.” Oy vey!

Overripe mackerels.

When it comes lawyers and their billing practices, something previously explained at “more art than science,” the topic is overripe — indeed, redolent of that proverbial mackerel stinking in the moonlight.

It’s the stuff of the credulous honest heart fancying a belief in “the lawyer who under-charged . . . and other fairy tales.”

To avoid such astonishments, then, clients would do well to heed what Mae West once observed, “Those who are easily shocked should be shocked more often.”

Or in a more serious-minded vein, to note longtime lawyer blogger Carolyn Elefant’s remonstrations on the matter of lawyer overbilling — “so long as lawyers are driven by a desire to maximize revenue, without regard to the client’s best interest, then clients will suffer.”

To which the DLA Piper/Victor fee dispute unsurprisingly leads, it’s the question begged by Forrest Wickman, a.k.a. the Explainer at Slate Magazine, who asks, “When did lawyers get such a bad reputation?”

Looking chronologically, culturally and humorously at what underpins the practice known as “Churn That Bill, Baby!”, Wickman provides his answers.

But if Wickman’s explanations still don’t suffice, there’s always this:

“A man phones a lawyer and asks, “How much would you charge for just answering three simple questions?”
The lawyer replies, “A thousand dollars.”
“A thousand dollars!” exclaims the man. “That’s very expensive isn’t it?”
“It certainly is,” says the lawyer. “Now, what’s your third question?”

______________________________________________________________

Photo Credits: “Screenshot of the title screen of the trailer,” at Wikipedia Commons via public domain; “paul henreid, ingrid bergman & humphrey bogart – casablanca 1943,” by Raoul Luoar at Flickr via Creative Commons-license requiring attribution; “Danger! Manure!,” by whatleydude at Flickr via Creative Commons-license requiring attribution; “Mrs. Grace Herr churns butter at her farm home, Butter1web.jpg” at Wikipedia Commons, by the National Agricultural Library of the United States Department of Agriculture‘s Agricultural Research Service. As a work of the U.S. federal government, the image is in the public domain.

“Lean in” like the moneyed class. And the Arizona Bar wants to know about lawyer kibble.

lawmrh — Wed, 27 Mar 2013 00:56:23 +0000

Facebook Chief Operating Officer Sheryl Sandberg — she of the Harvard College summa cum laude Economics sheepskin and Harvard M.B.A. leaves work at 5:30 p.m. for a brand-new 9,000 square foot McMansion and her two kids. She’s just another Suzy Homemaker with a nine figure net worth.

Sandberg’s smart enough to have known that as a well-entrenched member of the 1%, she might face a wee bit of criticism for preaching in her new book to a congregation sitting outside in the cold.

Does an exceptional pedigree, rarefied corporate power and mind-boggling wealth dilute a feminist empowerment message: Lean In: Women, Work, and the Will to Lead? No doubt.

If it only took “Will” — and not a whole bunch of “Benjamins” to pull off what Sandberg advocates in her self-help tract. Among other things, she tells women that to get ahead, they need to ‘lean in‘ at the workplace.

Give her credit for brass even as she faces criticism for the temerity of a billionairess’s personal fortune that “must leave her tone-deaf to the plight of the typical worker.”

How tone-deaf? About $96,261′s worth, which according to Investopedia is how much a homemaker is worth these days — or at least that’s how much money is needed to pay for the army of help to pull off the glass ceiling-crashing career Sandberg envisions for her childbearing sisterhood. For the moneyless classes, it’s “The True Cost of Leaning In.”

When you’ve successfully satisfied all your physiological and safety needs like she has, the rest is easy — from a self-satisfied self-actualized pulpit.

Our society, though, has a long history of the privileged and entitled lecturing the rest of us on how to be successful.

Still, while obvious, her points are well made. Speak up. Don’t hold yourself back. Enough with the ‘shrinking violet’ stuff. We shall overcome“the leadership ambition gap.”

Arizona Lawyers: How much do you make?

And speaking of tone-deaf, then there’s the Arizona State Bar, the self-styled consumer protection agency that wants to know how much kibble is in the lawyer kitty.

Stop me if you’ve heard this before but the Bar is again asking their lawyers to pony up their economic data. It was almost three years ago when the Bar last asked, ‘take our survey — so we can sell you the results.’

Unlike last time, however, this time they’re curious enough to inquire, “How much law school debt are Arizona attorneys carrying?”

So why do they want to know? What difference does it make? Will Bar dues go down? Or the cost of Bar-sponsored continuing legal education? Or is it, like before, to publish a full report so the Bar can sell it to its members?

Maybe it’s for calibrating the economic pain meter to justify how much to charge lawyers for the continued privilege of practicing law in the state?

Maybe, it’s simply a legally palatable, anti-trust compliant way for firms to figure out legal services pricing based on market average billing rates?

Perhaps, it’s all of the above. All the same, if Arizona lawyers belonged to a member-friendly voluntary bar like in Kansas’, they wouldn’t have to pay for a copy of the full report. In Kansas, bar members receive the 2012 Kansas Economics of Law Practice Report gratis.

But then Arizona is a mandatory membership bar like New Mexico, Oregon, and Mississippi and the majority of U.S. jurisdictions. However, in those three mentioned jurisdictions, their members don’t pay for the full report. They download their compensation surveys free of charge. See The Economics of Law Practice in New Mexico Lawyer Compensation and Oregon’s 2012 ECONOMIC SURVEY – Oregon State Bar and Mississippi’s 2012 ECONOMIC SURVEY September 2012 – The Mississippi Bar.

So having dutifully ignored the first two emails, the Bar emailed my “Last Chance – Your Link to the 2013 State Bar of Arizona Economics Study” last week. No thanks. Ear-trumpet and all, can’t hear you.

______________________________________________________________

Photo Credits: “ear trumpet 1,” by Eknath Gomphotherium at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution; “Maslow’s Hierarchy of Needs,” at Wikipedia Commons via Creative Commons Attribution-Share Alike 3.0 Unported license;

Steel traps and states rethinking judicial mandatory retirement ages.

lawmrh — Thu, 07 Mar 2013 04:16:43 +0000

As anti-mandatory judicial retirement trends across 14 states, an Indiana state senator proposes a bill to eliminate his state’s current mandatory retirement age of 75 for state appellate judges. “We’ve got lawyers in their 80′s whose minds are steel traps,” he says in this morning’s Wall Street Journal, “A New Lease for Old Judges.”

But steel traps? In today’s polarized political climate, partisans put more weight on what side of the political aisle a jurist sits — well before they consider whether to keep them around into their dotage. For the fervent liberal or conservative, a judicial “mind like a steel trap” is attractive only when it’s closed to the opposing side.

For a number of reasons, however, not the least being my belief in the axiom that power corrupts, I advocate consistently for term limits to rein in the powerful. Indeed, this is why I wholeheartedly agree with Indiana University law professor Charles Geyh’s assessment that for judges, “Age restrictions really are a proxy for term limits.”

So age restrictions are a good thing. Besides, even with politicians and judges acting more like aging rock stars who never say die, whatever happened to for every time there is a season?

Running on empty.

Beyond arguing that there’s plenty of ‘gas left in the old tank,’ proponents of an ageless judiciary, also offer up the somewhat specious reasoning that because states have judicial disciplinary mechanisms in place to punish or remove judges, there’s no longer any reason to impose mandatory retirement ages on judges.

As WSJ reporter Ashby Jones explains, the mandatory retirement ages for judges were established “long before states had developed formal processes to get rid of judges who had become ill or suffered mental decline.”

But according to data gleaned by Citizens for Judicial Accountability, a self-described “nonpartisan citizens’ grassroots organization,” out of an estimated 10,000 judicial complaints it claims were analyzed by the American Judicature Society, “Statistically, only one out of a hundred complaints or 1% and probably less results in a determination.”

Rather than relying exclusively on the purported watchdog vigilance of judicial accountability commissions, if state lawmakers want to keep aging judges on the bench past 70 or until they drop – to safeguard the public’s faith in the courts against the potential of a mentally and physically enfeebled judiciary — lawmakers should follow 7th Circuit Federal Appellate Court Judge Richard Posner’s advice for “the nation’s premier geriatric occupation.”

So that things don’t just wander in and get mangled by a mind that’s become a rusty steel trap — after 70, Judge Posner recommends judges be required to take “a test of mental acuity every five years.”

____________________________________________________________________

Photo Credits: “Bear trap,” by Minnesota Historical Society at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution; “Detail from Corrupt Legislation. Mural by Elihu Vedder. Lobby to Main Reading Room, Library of Congress Thomas Jefferson Building, Washington, D.C. Main figure is seated atop a pedestal saying “CORRUPT LEGISLATION” at Wikipedia Commons, Photographed 2007 by Carol Highsmith who explicitly placed the photograph in the public domain; “Out of gas,” by 2nd2Nunn Photography at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution.

Inspiring, impossibly unstoppable “Inocente.”

lawmrh — Sat, 02 Mar 2013 00:14:34 +0000

Sometime ago, I blogged about Gerson, Alejandro and Jonathan, three illegal immigrant students living a hard life “on their own.”

Coming at the time amidst the fall-out over Arizona’s enactment of the anti-illegal immigrant law known as SB 1070, the local Phoenix newspaper ran an affecting story about the three youths. The reporter put a warm, compassionate face on their daunting struggle.

Following the 85th Academy Awards last month, I was intrigued once more by yet another undocumented immigrant student’s story. On the world-weary face of it, you might ask, “What’s the point of another such story?” After all, there are many such Dreamers.

Nevertheless, I was curious enough to find out more about the winner for “Short Documentary,” Inocente.

What I found was a surprisingly relatable, emotionally stirring and ultimately uplifting story of a fifteen-year-old called Inocente. She is a homeless, undocumented immigrant who admits to dreaming “silly dreams.” Even so, she is nonetheless determined to become an artist — “and go her own way” despite the long odds and an unsparing future.

It’s an affecting, beautifully rendered film. And she is an inspiring and talented young woman. “What if we could walk the clouds and ride shooting stars?” she asks.

“I have impossible dreams, but I still dream them,” she explains.

“Homeless, creative, unstoppable.” Inocente is very much worth knowing about.

See the Oscar-winning documentary ‘Inocente‘ (complete video) at Pocho.

______________________________________________________________

Photo Credits: DSC_0886, by Robert Silz, longislandwins at Flickr via Creative Commons-licensed content requiring attribution; Innocente Cover at “Stories 99,” http://stories99.com/wp-content/uploads/2013/02/Inocente-Cover.jpg.

Law school fabulists.

lawmrh — Sun, 24 Feb 2013 22:33:59 +0000

Reinvented journalist turned healthcare worker Edward Barrera wants to recreate himself — again. This time it’s via nascent fabulations of attending law school.

He said so in Southern California’s Pasadena Star-News, a newspaper not on my usual reading menu. But thanks to Internet aggregatorYahoo! News, I chanced on Barrera’s fatuously entitled essay, “Law school and combat.”

I’m still holding my nose from his brain infarctions, especially talk about “combat,” as though the law was bereft of combatants.

After reading, I was compelled to comment here and on his blog.

Barrera wants to join in on the so-called “fun” he thinks a lawyer friend is having. By becoming a practicing lawyer, he imagines he’ll re-experience“the thrill of combat” he once got as a journalist.

Presumably, he’s no callow youth — despite the ‘visions of sugar plums dancing in his head.’

Yeats wrote, “The best lack all conviction, while the worst are full of passionate intensity.” So against my better judgment, I find myself rescinding an earlier vow to stop weighing in on law schools and their unconscionable hosing of students and graduates.

I do so perhaps, less from Barrera’s delusions or his invocation of the overworked oft ill-used Shakespearean quotation, “The first thing we do, let’s kill all the lawyers.” (To his inestimable credit, he pointed out the quote is usually out of context and misinterpreted).

More likely, I’m posting because I contemporaneously read one more law school dean’s self-interested prescription on fixing law schools and by extension — the 21st century legal profession.

This time, it was James Huffman, dean emeritus at Lewis & Clark Law School, who at least courageously confirmed the identity of the 800-kg. poop-making producer in the punch bowl — the American Bar Association (ABA).

The self-interested stakeholders inside law school academia are always too quick to offer self-serving solutions that safeguard sinecures, preserve privileges, and bless all their benefices . . . forever and ever, Amen.

But in his Wall Street Journal epistle, Perverse Incentives of the Lawyers Guild, Dean Huffman did at least state the obvious: “The ABA should start by looking within: The organization is a major source of the problem. Those large law-school faculties with some of the highest salaries in the academy, the palatial facilities, a persistent emphasis on theory instead of practical-skills training, and a limited reliance on online instruction have all been encouraged, if not mandated, by ABA regulations and the accreditation process.

“As often happens with regulatory systems, whether governmental or professional, the ABA accreditation process was long ago captured by legal education’s most influential stakeholders. ABA accreditation site-visit teams routinely include a dean, tenured classroom faculty, clinical faculty (historically untenured but now increasingly tenured, thanks to ABA requirements), a librarian, a university administrator and one judge or member of the practicing bar—but no students or consumers of legal services.”

Years ago, a high-end hotel executive described the problems cost-conscious innkeepers encountered from guests when they tried eliminating a room amenity — whether chocolate on a pillow or a packaged shower cap. “Once given, always expected,” he despairingly muttered.

Likewise, Dean Huffman’s proffered solution is no solution at all. It does nothing to disturb the entitled classes: avaricious law schools-turned-university-cash-cows; overpaid, under-worked tenured faculty; and high-level administrators ensconced in fancy facilities.

Dean Huffman instead looks elsewhere. He wants the ABA to release law schools from most current standards so that “the enormous intellectual power of their faculties” can sow innovations and make “a thousand flowers bloom.”

Oh, puh-leeze. This will merely wrest the keys away from the ones running the asylum and give them to the inmates instead.

Moreover, the dean emeritus forgets his own criticism of the insular ABA accreditation site-visit teams who do not deign to include “students or consumers of legal services” in their sacred process. Apparently, flowers never bloom from those infertile fields.

In sum, before considering law school, aspiring lawyers should first read Tucker Max’s list of “The 6 Wrong Reasons to Go to Law School” at the Huffington Post’s: “Why You Should Not Go to Law School.”

And deans, emeriti or not, should revisit law professor Brian Tamanaha’s apostasy, “How to Make Law School Affordable.“

The former will be prudential simethicone for mental vapors. And the latter will provide the proper prescription, which is to inject overdue rationality into a madhouse.

Recast, then, the busted business model and reform the economics. Rein in the money. And align the incentives so that besides a commercial interest in their own prosperity, law schools finally have an accountable stake in the post-graduation success of their students.

______________________________________________________________

Photo Credits: “Large walrus on the ice – Odobenus rosmarus divergens – contemplating the photographer – Alaska, Bering Sea,” by Captain Budd Christman, NOAA Corps, at Wikipedia Commons, public domain; The Madhouse by Francisco Goya, at Wikipedia Commons, public domain.