The Criminal Lawyer

The law is an amazing profession, but it’s not for everyone.  In fact, it’s not for the vast majority of people.  And when it’s not a good fit, the downside is awful.  Mismatched lawyers are miserable.  Their lives can really suck.  They may be very good at what they do, but it’s not particularly fulfilling.  Or it’s too time-consuming, preventing them from doing the other stuff that would be fulfilling.  Maybe they can’t stand dealing with other lawyers.  And if they’re not very good at what they do, their clients can suffer far far worse.

But for those who belong here, the law is a wonderful place to be.  It challenges the intellect, inspires ideas, and gives you a chance to really make a difference.  And that is huge.  It doesn’t matter what kind of law you practice; you’re dealing with real people, with real lives, and you’re helping them with a real need.  A life in the law is deeply fulfilling, and a life well spent.

Unfortunately, most mismatched lawyers don’t figure it out (if ever) until far too late, when they’re already practicing.  Some cut their losses and start a new career.  But most don’t.  Maybe they’re in a large law firm and just hate it, but can’t leave the paycheck.  Maybe they feel they’ve invested too much of their lives in law school and advancing through the profession, and so are unwilling to chuck it all and start over doing something else.  Maybe they sincerely can’t think of anything else to do.  And they wind up getting more and more miserable.  It’s no wonder that alcoholism, depression and divorce are rampant among lawyers.

The best time to figure it out, of course, is before going to law school.  Some people wisely drop out (or, thankfully, wash out), but that’s rare.  No, once a mismatched lawyer is admitted to law school, the odds are they’re going to stick it out and become a sinkhole of misery.  Far better to have turned away and pursued a more fulfilling life before ever going to law school in the first place.

But how can you tell if the law’s going to be a good fit for you?  It’s tough, if you haven’t tried it out first.  Whether you’d be happy or not is all hypothetical until you start working.

Fortunately, you know yourself pretty well.  Nothing hypothetical there.  If you’re honest with yourself, you know what traits you have and don’t have.

And fortunately, we’ve known plenty of other happy lawyers, and had the chance to observe what traits we all seem to share.

So if you’re wondering whether you ought to go to law school, you might want to ask yourself a few very simple questions:

-=-=-=-=-

1.  Do you want to be a lawyer?

If the answer is no, then you shouldn’t go to law school.  Sure, lots of people say it prepares you for other kinds of work, and trains your brain to do marvelous things.  But if that’s all you want out of it, go take some continuing ed courses in History, Philosophy and Economics.  A rigorous study of History will give you the same issue-spotting, researching and detail-checking that you’d get from law school — probably better.  Philosophy will certainly give you a better grounding in logic, analysis, and reasoned argument.  And Economics, along with the other two, will give you enough grounding in how people actually work, and why they do what they do.  There is nothing else that law school teaches if you’re not planning to be a lawyer.

Law school serves a single function: it is a (more…)

We keep being surprised by these folks who insist that lawyers need to blog.  That it’s a great way to generate clients, pumping up the old SEO so potential clients see your website and hire you.  That advice always strikes us as the equivalent of saying you ought to name your law firm with a couple of leading As so it’s on the first page of the yellow pages.  Not that many people call lawyers just because they were listed first in the phone book, nor because they popped up in a Google search.  And the ones who do aren’t necessarily the kind of client you really want.  Scott Greenfield had a cool post on this the other day, using his own (very impressive) blog stats to demonstrate that it just doesn’t convert into clients.

Lawyers absolutely do not need to blog.  Blogging, in and of itself, does not generate clients.  Looking at just the bottom line, most lawyers could spend the time it would take to blog doing more profitable marketing like meeting other lawyers at functions (most good clients still come from referrals from other lawyers, after all), or just spending the time working and billing some more hours.

We certainly don’t do this to attract clients.  Heck, we hardly ever write about our own practice here, much less tout our abilities, experience, or any of the kinds of things a potential client might want to know.  Back in college, we sold encyclopedias door to door, so we know a thing or two about getting the old foot in the door and making a sale.  We don’t do any of that here.

So why do we write?

Because we enjoy it.  No other reason.

-=-=-=-=-

We write for an audience of one: Nathan Burney.  We’re genuinely surprised every time someone else tells us they read something here.  We’re like, “really? You saw that? That’s weird.”  Our own wife doesn’t even bother to look at it.  We’re not sure if our parents have ever read anything here.

That’s really freeing, because that lets us write about whatever we feel like writing about.  We don’t have to worry about how it might affect our page rank on Google.  We don’t have to worry about turning off some potential client.  We don’t have to worry about offending anyone.  So we write about what we like.  And as it happens, we really get a kick out of the law.  Yeah, that’s not something many people would admit to, but who asked you?  And wait, are you really reading this? Weird.

One of the big things we enjoy about writing this blog is (more…)

As our first bureau chief, a wise and gifted man, would often say to us:

“Oy.”

Last Friday, we blogged about how this Rakofsky fellow had done something very foolish.  After being reported to have done some pretty bad lawyering, and being roundly disparaged by the blawgosphere as a result, he made things worse by shining a spotlight on it all and filing a lawsuit against everyone who’d written about him.  This included the American Bar Association, the Washington Post, and most of the better blawgers out there.  We pointed out how very foolish this was indeed.  And (with tongue firmly planted in cheek), we bemoaned the fact that we’d missed the opportunity to have commented on his behavior the first time, and were so excluded from the honor roll named in his (very badly drafted) complaint.  He could have let it all blow over, worked to rebuild his reputation, and maybe even have been forgiven for a newbie screwup.  But he’d made it worse, screwing up even more.

Well, he’s screwed up again.

He and his lawyer Richard Borzouye (apparently a former member of Rakofsky’s own firm in… Connecticut? Really?) must have worked all weekend long.  Because today, Tuesday, they served an amended complaint on the original 74 defendants… plus six or seven more.  Including us!  Apparently, if you commented on the original foolish complaint, you got added to the new one.

The allegations against us in particular are just dumb.  A pithy commenter online summarized the allegations as that we “have brought the legal profession into disrepute by making fun of” Rakofsky and Borzouye.  There’s more to it than that, however.  According to the amended complaint, our Friday post was written “with malice and hate, in a grossly irresponsible manner,” and made us “actors in the intentional infliction of emotional distress.”  You can’t make this stuff up.  We tried to read the relevant paragraphs out loud to a paralegal, but were laughing too hard.

We couldn’t help but be reminded of this old sketch (which also used to have us in stitches way back in our misspent youth):

“The moon mocks me…” Cracked us up every time.

Anyway, if they thought our Friday post was mocking enough to warrant an amended complaint, we’re sure they’ll think the same about this one.  (And all the other commentary that’s been posted by others today, as well.) So that’s probably going to lead to yet another amended complaint.  And more apparent mockery.  And more complaints.  And so on.  And so on.

Their process server will be pleased.

Last month, we posted on the senate hearings on whether the feds need to get a warrant before getting emails and other stuff stored in the cloud.  The Obama administration would rather let the feds continue to get such stuff without bothering to get a warrant, as they now can do under (very outdated) current law.  As we put it:

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

And we quoted Sen. Patrick Leahy, who last year argued to drag law enforcement and the Fourth Amendment into the modern era:

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times.

Well, today Sen. Leahy proposed a new bill that might do just that.  The bill (pdf here) would get rid of that 180-day loophole, and require the feds to get a warrant no matter how old the email or data might be.

-=-=-=-=-

Obviously, we’re in favor of that.  But this bill goes farther than that.  If adopted, this bill would also:

1. Prohibit cloud services from knowingly (more…)

Interesting Fourth Amendment decision from the Supreme Court this morning, in a case which at first glance didn’t seem all that cert-worthy.  The facts are as run-of-the-mill as they come — an undercover buy-and-bust, the dealer ran into a building, arrest team followed in just as one of the doors slammed shut but couldn’t tell which of 2 apartments the guy went into, from the hallway they smelled dank weed burning, the smell was stronger by the apartment on the left, the cops banged on the door and announced themselves, the cops heard stuff being moved around inside and figured it was evidence being destroyed, the cops burst in and found significant amounts of pot and cocaine.

The first time we read the facts in this case, we couldn’t help wondering “seriously, what’s the problem here?”  We’re well aware that the cops’ story might not be entirely truthful, but on the facts as given there just didn’t seem to be grounds for suppression.  The cops are allowed to pursue a suspect into the hallway of an apartment building (here it was a breezeway, arguably even less private).  The cops were entitled to bang on the door that smelled of burning marijuana.  There’s no Fourth Amendment prohibition against the police banging on your door and shouting “police police police.”  On hearing sounds consistent with destruction of evidence, it’s pretty well settled that an exigency now existed.  That’s one of the dozen or so exceptions where society’s interest in something (here, preservation of evidence) trumps the right against warrantless searches.  So seriously, what was the problem?

The problem was that the police arguably created the exigency themselves.  If they hadn’t banged on the door and announced their presence, there wouldn’t have been any evidence-destruction sounds.  Can the police manufacture an exception to the warrant requirement, one that would not have existed otherwise, and then rely on that exception to conduct a warrantless search?

Ah, now it gets interesting.

Writing for an 8-1 majority in Kentucky v. King, Justice Alito neatly described (more…)

You’ve probably heard, by now, of this Joseph Rakofsky kid.  You know the one — the newly-licensed lawyer who took on a murder trial without any trial experience, who is alleged to have told his investigator to “trick” an eyewitness into denying having seen anything, and whose performance was so bad that the judge had to declare a mistrial.  You know the one — the guy who, after causing that mistrial and getting reprimanded by the judge, went online and bragged about the mistrial like it was some kind of success.  You know the one — the one who quickly became a laughingstock, as soon as the story got picked up by the ABA Journal, the Washington Post, and half the blawgosphere.

Well, you’d think he’d have wised up.  You know, let it all blow over.  Take the time to rebuild his reputation with hard work and diligence.  Memories are short.  Old news gets buried even on the seemingly permanent internet.  It was already happening — it’s only been a month or so since the brouhaha, and he’d already dropped off the radar.  It could have all been forgotten — even perhaps forgiven, if he’d manned up, admitted his error, and moved on.

But no.

Instead of doing the smart thing, this Rakofsky kid demonstrated once again some amazingly poor judgment, and filed a lawsuit.  Against the ABA Journal, the Washington Post, and half the blawgosphere.  In other words, everyone who covered or commented on his doings.

Brilliant.

So now, everyone who’s already demonstrated a willingness to write about his conduct, now has yet another thing to write about.  And you’d better believe they’re gonna.  We expect to be sipping our coffee in the morning and chuckling ruefully at responses by some of the numerous defendants.  As they’re some of the most heavily-read blawgs out there, we expect that by this time tomorrow, the name “Rakofsky” will have attained the same tragic/comedic status as “Santorum.”  Yet another shining example of the Streisand Effect.  Well done.

And of course we’re nowhere to be seen on the complaint.  Lucky us, we were on trial and not posting too much, and it blew over pretty fast.  But now being on that complaint is going to be something of a badge of pride.  And we’re not there.  Dammit.  Maybe he’ll amend his complaint to include us now, or maybe one of the defendants can do one of those… uh, civil procedure thingies… where you bring someone else into a case?  Whatever.

-=-=-=-=-

For those who want to read the complaint (and we can’t advise it — it’s so badly written it’s actually painful to read) you can find it on Scribd here, under the delightful title “Rakofsky v Internet.”  Sure to become an instant classic, never to be forgotten.

-=-=-=-=-

UPDATE: It seems there already is a badge of honor, compliments of Amy Derby.  Link.

The other day, we said the short answer is that the killing of Osama bin Laden was lawful.  Some have asked for a bit more detail in the answer.  We can’t give the full answer, of course, but we can give a slightly longer one than we did.  A full answer is going to require more facts than we’ve been able to glean from the papers, and is going to have to come from the DoD and the State Department anyway.  They haven’t given a full legal analysis yet (and that’s fine, by the way), and the actual facts seem to change each time we read about what happened.  Fortunately, the law doesn’t change with the facts.  So though we can’t give a full answer, we can make a few assertions with a fair amount of confidence.

First, lawful military targets do not only include those who are in the middle of shooting guns at your soldiers.  Anyone who is an identified member of a hostile enemy is going to be a lawful military target.

Al Qaeda is a known hostile enemy, one which has been involved in combat against the United States for a long time now.  Any identified member of that hostile enemy would be a lawful military target.  It doesn’t matter whether that person was armed or not.  Let’s repeat that: it doesn’t matter whether he was armed or not.  It doesn’t matter whether he poses any immediate threat.  All that matters is that he was an identified member of a hostile enemy.

With uniformed services, this is easy.  If you see a uniformed enemy officer, you’re free to take him out.  The uniform identifies him as a lawful target.  He could be walking down the street, minding his own business — it doesn’t matter.

But with non-uniformed enemies, there has to be some reason to believe the guy walking down the street is a member of that hostile enemy.  There has to be a reasonable certainty that he’s one of them.  In other words, you’ve got a positive I.D.

If you’ve got someone who is an identified member of a hostile enemy — either by uniform or by positive I.D. — then a soldier is allowed to shoot them, even if they pose no particular threat at the moment.  The lawfulness comes not from what they’re doing, but from who they are.

The only real exception is when they are hors de combat — a term of art that essentially means “no longer in a position to fight.”  Examples include the wounded, POWs, and those who have surrendered.

The only variable in Osama bin Laden’s case is whether he was hors de combat at the time he was shot.  Unless that exception applies, he was a perfectly lawful target.  The orders to kill him were lawful, and those carrying out the kill mission were acting lawfully in following those orders.

We weren’t there, and neither were you, so it’s impossible to say whether bin Laden had been incapacitated or had surrendered prior to being shot.  The facts reported thus far is that this wasn’t the case.  He doesn’t seem to have been the type to surrender in the first place.  And even if he had wanted to, the burden is not on the soldiers to figure that out — he’d have to make it extremely clear.  Which can be difficult in the middle of a firefight.

So there’s no reason to believe he was hors de combat. Given that, and given that there was a reasonable certainty that he was a member of al Qaeda, a known hostile enemy, he was a lawful military target, and it was lawful for the SEALs to take him out.

And that’s really all there is to it.

It’s only been a few days since Osama bin Laden was killed in a U.S. military assault on his compound in Pakistan.  And in those few days, the internet has been buzzing with discussions, debates and hand-wringing over whether the U.S. acted lawfully.  We’ve been reading thoughts of people on every continent, regular folks with access to a computer, who may or may not even know what they’re talking about.  And all we have to say is this:

We’re glad to be living in a world where such hand-wringing is possible.  More than that — a world where it’s actually meaningful (rather than silly) to wonder whether a precise military action by the world’s single greatest military power, against its universally-acknowledged military enemy, comported with some higher and overriding law.  A world where such hand-wringing is done at great length by that same great power, prior to engaging in the military action to begin with.

Imagine that, just for a moment.  Has this ever before been the norm, in the entire history of mankind?  Because it sure is now.

-=-=-=-=-

How did we get here?  How did the world evolve to a point where the Rule of Law is the rule, not the exception?  Where everyone pretty much expects that even the greatest military power is not above the law?

It’s been a long time coming.  International law has been developing for centuries.  But credit has to go to the  U.S. and to the U.N., both for living by the Rule of Law (most of the time) and spreading the ideal and the idea.  It matters that the world’s superpower acknowledges the law, and cares deeply whether its actions are lawful, no matter which party happens to hold the presidency at the moment.  It also matters that the world has an engine for forming and enforcing (somewhat) rules that are binding not only on those who would be bound, but also on the strongmen and thugs who would not.

Of course, we’re not all the way there yet.  There still are plenty of places where the Rule of Law doesn’t exist.  They suffer for it — not just atrocities and depredation, but failed economies, corrupt governments, and dearth of opportunity.  If there is one thing above all that separates the first world from the third world, it is the Rule of Law.  Especially in this globalized world, the places that succeed are those where contracts can be counted on, everyone has to play by the same rules, and the rules are actually enforced.  Once you’ve got that, you can kind of predict what’s going to happen with enough certainty to invest one’s time, labor or capital to actually do something.

And it’s easy to spot the countries without the Rule of Law.  For example:

Still, the world is on the right path.  Let’s hope that there really is some sort of “arrow of history” like the one Francis Fukuyama proposed back in ’92 (though he did subsequently back away from the idea).  We’re hardly Utopian in outlook — our own mother calls us “old doom and gloom” — but it’s not unrealistic to hope for at least a trend towards more and more Rule of Law in the world, with the result of more and more general safety, security and opportunity.

-=-=-=-=-

But we’re getting off topic.

The point is, we’re glad to be living in a world that can be full of hand-wringers over whether the U.S. acted lawfully in taking out an apparently unarmed Osama bin Laden, without instead capturing him and putting him through a criminal process of some sort with due process, etc.

(And for those who really want to know whether it was lawful or not, the short answer is yes.  The medium answer is he was a lawful target of a lawfully authorized kill mission during a war in which both he and the U.S. soldiers were combatants.  From all that we’ve read, it was done by the book.)