Archive for August, 2011

Straight Talk

Tuesday, August 30th, 2011

 

“Why didn’t you tell me that before?”

This is not something you want your lawyer to be asking you in the middle of trial.  Or worse yet, in the cells after you’ve lost your trial.  And yet it is a perpetual ostenato heard in every criminal courthouse.  The head-shaking lament of lawyers whose own clients deprived them of the very information that could have changed the outcome of the case.

It is only human nature, of course, to minimize one’s own culpability.  Each one of us is the hero in our own story, not the villain.  If bad things are happening to you, it’s not because you did something wrong, but because you are the victim of a misunderstanding, of a vindictive lying accuser, of an overzealous prosecutor.  People start rationalizing their conduct before it even happens.  It’s just the way our brains work.  When speaking to another human being about something that might get you in trouble, it takes an almost inhuman amount of trust to be completely frank.  Even when speaking to an ally.  Even when you know that this ally needs to understand what really happened before he can help.  The urge to shade the truth, to make things sound more innocent than they really are, is always there.

It’s a simple truth.  So only a foolish lawyer ignores it.

A wise lawyer with sound judgment — the kind you want defending you — is going to be skeptical of what you tell him.  No offense.  Whether it’s your first meeting or your fiftieth, his bullshit meter is going to be turned on.

That’s because what wins cases is preparation.  Knowing the facts (and applicable law) better than the other guy.  Knowing better what happened.  Not having a more innocent-sounding story.  Facts.

When your lawyer defends you, he assesses the data in front of him to see if there are any legal arguments that might help.  He analyzes the data to see what the actual risks and opportunities are.  He bases his strategies and arguments on that data.  At trial, he weaves his stories and persuades juries with that same data.  The more — and more accurate — the data, the more he has to work with, and the more he can do for you.

This is the case even if the truth is ugly.  In fact, especially when the truth is ugly.  The more (more…)

So You’re a New Lawyer Hanging Out Your Shingle? Here’s Some Advice

Friday, August 19th, 2011

(Our last couple of posts about law school and recent graduates were a bit negative, focusing on those who are entering the profession for the wrong reasons.  But what about those who are doing it for all the right reasons?  They are in the majority, after all.  Well, this one’s for them.)

There’s plenty of talk around the blawgosphere these days of fresh young law graduates looking to start their own practices.  Some are hanging out their own shingle because they couldn’t find the right kind of job out of law school.  Some are doing it because that’s what they always wanted to do in the first place.  Either way, it’s a decision that takes a certain kind of entrepreneurial mindset.  Most lawyers we know would rather not own their own practice, because at least working for someone else you’re making steady reliable money with which to pay for such things as rent and debt.  When hearing of someone starting their own practice, they often say nice things like “how brave” or “that took some guts,” to which the new solo typically responds (in his head) “really?”  The kind of person likely to go solo isn’t the kind of person who thinks it’s a brave thing to do; they do it because it feels right for them.  Maybe they’re happier being their own boss.  Maybe they’re risk-takers by nature.  Whatever the reason, it’s what they’re comfortable doing.

So if you’re one of the newly-minted JDs thinking of going solo, hats off to you.

That said, however, there are some things you probably ought to be aware of.  There’s been a fair amount of foofaraw online about the ethical and disciplinary pitfalls out there.  All the warnings are true.  Read them and take heed.  These warnings are not threats.  They are not the crazed jabber of old farts trying to keep you out of their territory.  Ignore those who say otherwise; they are displaying poor judgment.

Lawyer ethics is not a trap for the unwary.  It is not a minefield of hidden dangers.  It’s pretty much common sense for anyone who has a sense of the law as a profession, rather than a business.  The rules are very simple:

  1. The client comes first.
  2. Know what you’re talking about before you open your mouth.
  3. Only take on a case if you can actually handle it competently.
  4. Never misrepresent anything to anybody, ever.  This includes what you say or imply about yourself online.

It’s not hard.  If you think these are scary rules, or that they’re designed to make it harder for you to make a buck, then please do not practice law — you have missed the whole point.  If you understand that your role as a lawyer is to protect the interests of your clients, who have entrusted to you matters that are of great importance in their lives, then these rules should elicit nothing more than a “duh, of course” from you.  You should wonder why such rules even need to be mentioned.  They are obvious and self-evident.

So enough of the rules.  We’ll presume that you have the necessary mindset to go it alone, and practice ethically.  What more do you need to know?

Although the practice of law has changed a bit over the past 15 years or so — with the rise of the internet, email, computerized research and all that — you don’t care about any of those changes because you’re just starting out.  The last thing you need is someone telling you how things work in the digital age.

What you probably don’t know, however, are some of the nuts and bolts of building a successful law practice.  So here are a few things to get you started:

-=-=-=-=-

First, make sure you (more…)

Who Are the Real Victims of Insider Trading?

Thursday, August 18th, 2011

 

Last week, the prosecution and the defense filed their sentencing memoranda in the Rajaratnam case.  Raj was convicted of 14 counts in all — 9 counts of securities fraud, and 5 conspiracy counts.  So what do the parties think that’s worth?  The feds asked Judge Holwell to sentence Raj in the range of 19.5 to 24.5 years.  The defense didn’t make a specific request, just said it ought to be “well below” what the feds want.

So 20 years, huh?  Wow, he must have been an awful bad guy.  Must have hurt a whole lot of people, right?

After all, a mugger in a dark alley only takes one person’s wallet.  A “white-collar criminal” can steal from thousands of people — and takes not just their wallet, but their life savings!  Right?

Well, hang on.  Did Raj actually steal from anyone?  How many investors did he really harm?  And did any of them really lose enough money to warrant locking someone up till we all have flying cars and jetpacks?

Judging from the feds’ sentencing memo, you bet.  Just look at this, from the introduction:

Raj Rajaratnam’s criminal conduct was brazen, arrogant, harmful, and pervasive.  He corrupted old friends.  He corrupted subordinates.  He corrupted entire markets.  Day after day, month after month, year after year, Rajaratnam operated as a billion-dollar force of deception and corruption on Wall Street.

Wow, that sounds awful.  So the victims are… who again?

But wait, there’s more:

Rajaratnam repeatedly leveraged the power of money and his position as the head of a 7-billion dollar hedge fund to induce friends, employees, and associates to participate in his criminal activities.  Although already rich, Rajaratnam did this to drive up his personal wealth through profitable trading in his hedge fund.  He did it to make sure that investors did not pull their money out of Galleon and to attract new money to his fund.  And he did it because of his egomaniacal drive to triumph over his competitors on Wall Street.

Again, wow.  (The feds sure like their adjectives, don’t they?  Comes off a tad over-the-top, if not insulting to the intelligence.)  So he was trying to increase his wealth, gotcha.  But at whose expense?  Guess we have to read more:

That was what he cared about: money and success.  What he did not care about, at all, was the extensive harm he left in his wake: harm to the capital markets; harm to the average, ordinary investors who played by the rules; harm to the companies whose secret information was misappropriated; and harm to the lives of those he corrupted.

Well, that sounds a little more like it… but again, who was harmed, and how?

Although particular investors on the other side of Rajaratnam’s illegal trades are not easily identifiable, there should be no question that ordinary investors paid the price for Rajaratnam’s crimes and that public companies were harmed by Rajaratnam’s repeated theft of corporate secrets.

Oh for crying out loud.  Are they joking?  Stripped of its demagogical rhetoric, this translates to “We have not identified any actual victims.  But we shouldn’t have to.  It’s obvious that lots of people must have been harmed, even if we don’t know who they were.”

If they don’t know who — or even whether — anyone was actually harmed here, how in blazes do the feds justify asking for 19.5 to 24.5 years of imprisonment?  Here’s how:

[The feds want that much time because they feel it is] proportionate to the historic nature of his crimes.  He is arguably the most egregious violator of the laws against insider trading ever to be caught.  He is the modern face of illegal insider trading.

That’s it.  That’s all.  “Because this is the first time we’ve ever caught someone so red-handed,” and “because this case got so much press.”  Those are the sole reasons why they are looking to put this guy away until he dies of old age.

Really?

-=-=-=-=-

For the record, we’re predicting (more…)

Top 5 Ways to Increase Your Blog Traffic

Tuesday, August 16th, 2011

 

If you’re trying to market your law firm online, no doubt you have a blog.  You know how important a blog can be for building your brand, and maximizing your SEO.  You’re doing everything right — loading up on keywords, submitting your posts to social media sites, and asking visitors to bookmark you — but when you look at your numbers each month, you’re still not getting all the hits you deserve.  What’s going on?  And how can you fix it?

What’s going on is that every law firm and solo out there has a blog these days, and it seems like everyone is doing the same thing.  After all, there are only so many ways to optimize your site if you aren’t constantly generating fresh content.  So if you’re like most blawgers out there, you’re getting lost in the crowd.

One way to stand out, of course, is to write lots of original content about topics that interest you, so that your interest draws in others similarly interested, and engage with your audience as it grows over time.  But this can be time-consuming, and who has that kind of time? Anyway, you don’t want potential clients to think you have this much time on your hands — they might wonder why you’re not busier, instead!  Furthermore, let’s face it, not everyone is a Kurt Vonnegut or Dave Barry.  We’re lawyers, not essayists.  In a way, it’s unfair that the essayists are drawing hits away from you, the lawyer.

Fortunately, we here at the Criminal Lawyer have learned a few secrets of maximizing blog traffic with a minimum of effort.  And now, for the FIRST TIME EVER, we are going to share with you the 5 easy techniques you can use to DRAMATICALLY INCREASE YOUR BLOG TRAFFIC RIGHT NOW:

 

TIP #1 — Lists, Lists, Lists!

Holy mother of God in a sidecar with rainbow sprinkles and a lobster bib, if you aren’t using lists, then you’d better start.  Articles with names like “The Top 5 Ways to…” or “The 10 Most Badass…” are proven to grab more online attention than anything that isn’t porn.

Online readers don’t stop to chew over ideas and digest careful arguments.  They nibble; they graze.  Give them bite-sized nuggets of pithy observations, and they’ll come back for more.

A bonus of the list is that it can automatically double your hits, by the simple method of breaking the post into two pages.  By spreading the list across three pages, you can even triple your hits WITH A SINGLE POST.  (But don’t get too crazy — studies have shown that online readers lose patience if they have to click through to every part of the list.  Don’t make it a slideshow.)

 

TIP #2 — Don’t Write for You; Write for Your Audience!

So you’re super-interested in this nifty case that just came down, and you think you have some ideas about why the court ruled that way and what it might mean for other similar cases?  Good for you.  Make a note of it for your own files.  But unless it’s a case that’s been all over TV news this week, I’ve got two words for you: BO RING!

How many people do you think share your interest in this little bit of legal arcana? A couple dozen?  Maybe?

Well, if you want a couple dozen hits, then by all means, knock yourself out.  But if you want MAJOR BLOG TRAFFIC, my friend, then you’re going to have to knock it off.

Write instead for the masses.  Don’t be a snob about it — what, are you too good for their attention?  Are you too good for their money if they decide to retain you?  Didn’t think so.

Look, if a topic is (more…)

You’re Smart Enough to Graduate Law School, Are You Stupid Enough to Sue It?

Friday, August 12th, 2011

Courthouse News reports that “a $200 million class action claims the New York Law School misrepresents post-graduate opportunities for lawyers and subjects ‘the overwhelming majority’ of its graduates to ‘years of indentured servitude’ after ‘saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off.’ ”  The plaintiffs accuse their school of “a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.”

Oh, for crying out loud.  This again?

Look.  Nobody forced you to go to law school; it was your own choice.  Nobody forced you to go to that particular school; it was your own choice.  Nobody forced you to take on more debt than you could reasonably afford; it was your own choice.  After your first year, and it became clear that someone with your grades from your school wasn’t likely to be making the big bucks, nobody forced you to keep going and to take on even more crippling debt.  It was your own choice.  You were a college graduate, an adult, presumably capable of making your own life decisions.

The school did not “saddle” you with debt.  You did it to yourself.  And now you regret it.  Frantically trying to blame anybody besides yourself for your own foolish decisions only makes you look… well… foolish, at best.  At worst, it’s almost like the girl who regrets her drunken orgy and accuses her fellow partiers of gang rape.  Either way, you certainly don’t come off as someone with the requisite judgment and brainpower to make it as a lawyer.  Are you sure it’s the school’s fault you’re not making it on the outside?

Here’s some more from the complaint:

[The] school consigns the overwhelming majority of them to years of indentured servitude, saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off. New York Law has done this while blatantly misrepresenting and manipulating its employment statistics to prospective students, employing the type of ‘Enron-style’ accounting techniques that would leave most for-profit companies facing the long barrel of a government investigation and the prospect of paying a substantial civil fine. These deceptions are perpetuated so as to prevent prospective students from realizing the obvious – that attending NYLS and forking over nearly $150,000 in tuition payments is a terrible investment which makes little economic sense and, most likely, will never pay off.

Specifically, NYLS, through both its print and internet marketing materials, commits two basic written, uniform misrepresentations. First, the school during the class period claims that the overwhelming majority of its graduates – roughly between 90 and 95 percent – secure employment within nine months of graduation. However, the reality of the situation is that these seemingly robust numbers include any type of employment, including jobs that have absolutely nothing to do with the legal industry, do not require a JD degree or are temporary or part-time in nature….

Second, NYLS grossly inflates its graduates’ reported mean salaries, by calculating them based on a small, mostly self-selected subset of graduates who actually submit their salary information….

There are so many things wrong with this.

The biggest problem is that, if you really were defrauded, then you had to be basing your decision on whether to go to this particular law school based in large part on how much money its graduates make.  If that’s not true, then none of this is material enough to be fraudulent.  Fraud basically means that, but for the misrepresentation, you wouldn’t have spent the cash.  If that is true, then you have no business being a lawyer in the first place.  You’re in it for the money, and don’t belong here.  You selected this law school not because you thought it would help prepare you for a life of service, but because you thought you’d be able to get “a job” and make “good money.”  Those are the wrong reasons, entirely.

Even if one were to concede that these were material considerations to the plaintiffs in this case, it is hard to imagine that anyone would have thought they really were all that material.  Would law schools really think their students are so mercenary that the main reason why they chose one school over another was the average alumnus salary?  That’s absurd on its face.  But it’s a prerequisite of the complaint.

And where is the deception, in the first place?  The complaint does not say that the school made up numbers out of thin air.  They only allege that the school honestly reported information which the plaintiffs then misconstrued.  Perhaps one could throw the plaintiffs a bone and say post-graduation employment figures would reasonably be expected to refer to legal employment.  But the salary information was what was reported.  There is no deception in reporting the numbers they got.  The school did not “inflate its graduates’ reported mean salaries” — it simply revealed them.

From what’s been reported — here and elsewhere — there just doesn’t seem to be any merit to this case.  We don’t see how it could possibly survive a motion for summary judgment.

As a work of chutzpah, however, it’s pretty good.  It’s not the same as killing your parents then seeking mercy because you’re an orphan, but saying your school owes you a fortune because you shouldn’t have chosen to go there?  It’s up there.

On the Usefulness of Law Reviews

Friday, August 12th, 2011

Okay, see that XKCD cartoon up there?

That’s not how law-school academia works.

Law school academia is more like this:

It’s not exactly news that law review articles don’t carry the same weight in their relevant field as, say, scientific papers published in a peer-reviewed journal.  Ask any practicing lawyer how many law reviews he subscribes to, and the answer is likely to be “zero.”  Ask any practicing lawyer how often he cites law review articles in his motions or briefs, and you are likely to hear either “seldom” or “never.”  Ask any practicing lawyer the effect that law review articles have on the practice of law and the advancement of jurisprudence, and he is likely to laugh condescendingly.

It’s not exactly news, but it’s something people have been talking about this summer, after Chief Justice Roberts disparaged the usefulness of legal scholarship at this year’s Fourth Circuit Judicial Conference.

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

Law professors, of course, rushed to defend the relevance of their articles.  But pointing out that occasionally a law review article might actually get cited in a footnote, to support an argument that was already being made, isn’t quite the strongest defense of relevance.

And it’s foolish for legal academics to make such a defense.  Nobody expects them to believe their articles are relevant to actual legal practice any more than one would expect a postmodernist paper in an academic literature journal to be relevant to the publishing industry.  Academia and the real life it studies are rarely the same thing.

And it’s foolish for legal academics to even imply that their writings ought to be useful to practicing lawyers.  There are only two kinds of law review articles that are of any use whatsoever to lawyers and judges:  One is the summary or survey of an area of law as it actually is right now this very moment.  The American Criminal Law Review‘s annual survey on white-collar crime is a good example, and there are a fair number of brief summaries of more discrete areas of law as well.  The most useful of these are the ones that deal with areas of law that are in flux, describing recent changes, which can help the practitioner or judge test the wind to see which way things are trending.

The second kind of useful law review article is the kind that doesn’t so much restate the law as explain why it is the way it is.  These are more rare, but can be very valuable for those trying to make a policy-based argument.  A well-done article of this kind takes all the disparate decisions out there and tries to provide an underlying policy that explains most of them.  Such a thesis is useful when dealing with an area of the law that is changing, or that one is arguing ought to change.

These useful articles are not useful as something one would cite as part of one’s primary argument.  If cited at all, it would be in a footnote.  Their value is not as an authority to be cited, but as a guide to help focus or expand one’s own thoughts.

But such articles are few and far between.  The overwhelming bulk of law review publications are of little to no use to anyone besides the author.

This is because law review publication does not serve the same purpose as other kinds of academic publication.

-=-=-=-=-

Law reviews serve two purposes: One is to provide an outlet for career academics to publish something — anything — in order to achieve tenure.  It’s a pointless exercise, as the quality of one’s articles is of no importance; it is the fact of publication that is important.  Having been published often, and recently, is all that is needed to put a check mark in the right box.

The fact of publication is itself no guarantee of the quality of scholarship, that’s for sure.  That’s because of purpose number two: To give better law students a way to further distinguish themselves.  We do that by having law students pretty much run the show.  Students select which articles are published.  Students do the fact-checking, making sure the cited sources actually say what the author claims.  Students check the grammar, spelling and bluebooking.  It’s a lot of work, and shows that one has the ability to juggle responsibilities beyond one’s caseload, and shows an aptitude for the kind of work often assigned to young associates, so it’s fairly prestigious and rightly so.  But it is not peer review, and it is no guarantee that the articles themselves are any good.  Grammar and cite-checking are not the same as substance.

Neither of these purposes is to provide a useful product for practicing lawyers and judges.  So because it is not their purpose, it doesn’t really make sense to knock them when they fail to do it.

-=-=-=-=-

Still, wouldn’t it be nice?  You know, if legal scholars were given tenure based on actually contributing something to our jurisprudence?  If it was the rule, rather than the exception, for law-review articles to be useful summaries of the law or explanations of the unnoticed policies that explain why the law is and where it is likely to go?  Then perhaps one might see them being cited a little more often.  Being read by someone not involved in the publication process.  Making a difference.

Don’t you want to make a difference?