Archive for February, 2011

ABA Tells Courts to Provide Detailed Brady Checklists

Monday, February 14th, 2011

We wrote recently on our distaste for those on the defense side who persist in playing games.  It should go without saying that it is far worse for the prosecution to play games.  And yet it happens all the time.

Ideally, when the prosecution has done its job right, it’s going to be holding all the cards.  If those cards are good, there’s little reason not to show them early and convince the defense to fold.  It saves everyone the expense and burden of litigating and trying a case that ought to just plead out.

And if those cards aren’t so good, then fairness requires that they still be shown.  Simple due process requires that a criminal defendant — someone whose life, liberty, reputation and property the government intends to destroy — be told when the government has evidence that might help him defend himself.  If such evidence is in the government’s possession, it’s not realistic to believe that the defense would ever discover that evidence.  Law enforcement is rarely willing to share information with the defense.  And even with evidence from other sources, the defense never has anywhere near the resources and ability of the government to discover that evidence.  Anyone who thinks the two sides are fairly matched in this regard either has no experience, or no active brain cells.

So that’s why we have the Brady rule.  Prosecutors are supposed to give the defense any evidence possessed by the government that might help the defense at trial or at sentencing.  It’s a great rule, but the problem is that prosecutors often have a hard time following it.  And they get away with it plenty, because it’s not like the defense was ever going to learn of the existence of that evidence.  And they have absolute immunity from civil suit for their Brady violations.

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any (more…)

Online Advice

Thursday, February 10th, 2011

We’ll admit to a guilty pleasure.  Sometimes we surf over to Avvo and check out the questions people are asking criminal lawyers here in NY, and the answers various lawyers are providing.  It can be cringe-worthy, but once in a while it can be instructive.

We cringe when people ask for actual legal advice.  We cringe harder when lawyers venture to offer it.  We cringe the most when someone basically admits to a crime in posing their question, for all the internet to see.

We like it, though, when someone is looking for basic information, and they’re asking about something we haven’t come across in our own practice.  That happens often enough to keep us surfing back at least once a week.  There’s always room to learn, even if we’re only learning that we’re ignorant of something.  (And there are certainly areas of criminal defense where our ignorance is complete.)

Many of the questions, however, are just wasting space by asking the same thing that’s been asked over and over again.  The place really needs to put up a FAQ section.  Stuff like no, New York law does not provide for the expungement of criminal records.  Yes, having sex with someone under 17 is against the law.  No, there is no such thing as expungement here.  Yes, you do have to go to court.  No, we still don’t do expungement.  Yes, it would be a good idea to get a lawyer.  You’re not getting your record expunged.  And other things like that.

And far too many of the answers are just as much of a waste of space.  When the answer is obviously “go get a lawyer, your question cannot be answered here,” some lawyers will go ahead and offer some fluff instead about what law seems to apply, or just make a sales pitch.  Sometimes, though, there’s nothing more you can say beyond “go get a lawyer.”

We don’t answer many questions ourselves.  It’s usually not worth our time, frankly, and nothing could induce us to give actual legal advice to someone based on an incomplete query over a public forum.  But now and then we’ll see a question that (1) seeks basic information, rather than legal advice, (2) has been sitting unanswered for a while, and (3) we actually can provide a useful response.  That’s becoming rarer and rarer these days, however.  Mostly because there are fewer and fewer questions remaining unanswered.  Which is a good thing, all in all.

One thing that really bugs the crap out of us, however, is how Avvo sells this whole question thing as (more…)

How to Win Friends and Influence People in the Digital Age

Friday, February 4th, 2011

Enchantment: The Art of Changing Hearts, Minds, and Actions

Guy Kawasaki

Portfolio/Penguin, coming March 2011, 211 pages, $26.95

As a rule, we don’t much care for books for business-types.  They’re like a print version of a cable-channel documentary — five pages of useful information, padded out with a couple hundred pages of anecdotes, rehashing, jargon and foofaraw.  Nevertheless, when the folks at Penguin asked us to review Guy Kawasaki’s latest, we kept an open mind.

We were pleasantly surprised.  It’s still a book for business-types, but this one has about 150 pages of useful information, presented with simple on-point anecdotes and only a little jargon.  Kawasaki has a fluid writing style that makes for fast reading and easy comprehension.  And as we read through it, we couldn’t help thinking it could help out the occasional trial lawyer, as well.

That’s because the book is a manual of persuasion.  Ignore the repetition of the word “enchantment” and absurd concepts like “delighting” customers.  This is a how-to book for getting people to make the decision you want them to make.  Although it’s written for marketing types, Kawasaki’s observations apply to pretty much any situation where person A is trying to get person B to see things his way.  (At least for most of the book, anyway.  The last third or so really is just for those in a corporate setting.)

He does a pretty good job of it.  The lessons are concise, but not glib.  The observations are clear and easy to accept.  His pointers and techniques make sense.

The book starts off by (more…)