Archive for the ‘Fractal Weirdness’ Category

Myth #2: Cops Can’t Lie

Friday, June 18th, 2010

For as long as we can remember, the word on the street has always been that cops cannot lie.  So if you’re doing a drug deal with an undercover cop, and you ask him point blank if he’s a police officer, then he has to tell you the truth.  He might try to technically get out of it by saying yes in a sarcastic tone of voice, but he has to be able to testify later on that he did say he was a cop.

And for as long as we can remember, we thought that was dumber than dirt.  The first time we heard this, back in our dim and distant teens, we imagined something like this:

ruacop

It just made no sense.  And, of course, it’s simply not true.  No undercover cop is ever going to jeopardize his investigation or his safety by admitting to the fact that he (or she) is a cop.  And there is no rule anywhere that says they have to.

But even so, this myth has persisted.  We can’t count how many cases we’ve dealt with where (more…)

Criminal Law Myth #1: You Can Drop the Charges

Thursday, June 17th, 2010

So Jacki called the cops on her man.  She didn’t mean for him to go to jail, really.  But it was a stressful situation, and this was the best way she could think of to get back at him.  It felt great, and having the cops on her side — having the cops as a weapon — was totally empowering.

But enough’s enough.  He’s been locked up for a couple of weeks, now.  It wasn’t supposed to be like this.  And it’s really hard for Jacki, what with him being out of work this whole time, and not being around to help with the baby.  And he really didn’t do anything wrong… it’s just that, you know… she wasn’t thinking straight.  And now it’s time for her man to come home.

That should be easy enough.  All she needs to do is drop the charges, right?  She’ll just go over to the DA and say she doesn’t want to pursue the case. 

We imagine that something like this is what’s going on in Jacki’s mind:

drop_charges_fantasy450

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Unfortunately, real life is more like (more…)

“Collars for Dollars”

Thursday, June 17th, 2010

collars_for_dollars

“Nathan, when you become mayor, I’m gonna be the first volunteer for your security detail.” 

This was a detective speaking, back when we were an ADA in the Manhattan DA’s office.  My office, as usual, had about five cops in it.  I liked this detective, and asked how come he wanted that job. 

“So I can be first in line to put a bullet in your head.”

He was only half kidding.

The reason is because I’d just proposed, in detail, exactly how I would cut out the NYPD’s systematic corruption that caused — and still causes — a great deal of injustice.

Several years have passed, and nothing has changed.  The NYPD is still set up to fail.  No matter how good its officers may be — and most really are quite good — the NYPD is designed not to serve justice, but to frustrate it.

-=-=-=-=-

There are several areas that need fixing.  But the single fix that would have the greatest effect would be to end the NYPD’s “collars for dollars” mentality. 

The force is structured so that cops wind up getting paid a commission — actually a bounty — for every arrest they make.  There’s a huge financial incentive for a cop to make an arrest, and there is zero downside if the arrest turns out to be bullshit.  Cops can easily game the system to maximize their pay.

Meanwhile, there’s huge political pressure on each command to “make its numbers” each month.  Not quotas, per se, but a sufficient number of arrests to justify the command’s existence to the politicians who (more…)

Prosecutorial Extortion

Monday, June 7th, 2010

 

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of (more…)

New Trend: Lawyers as White-Collar Defendants

Thursday, May 27th, 2010

businessman arrested

What’s with all the lawyers getting arrested these days, being charged with financial frauds, Ponzi schemes and the like?  Is this a new trend?  It sure seems like one.

The latest news is the announcement about an hour ago that the SDNY is charging one Kenneth Starr (no, not that one, this one), money manager for a bunch of celebrities, with yet another Ponzi scheme, funnelling $30 million of investors’ money into his own pockets.  He’s a lawyer in New York.  (You can read the complaint here.)

Then there’s the former law firm partner Michael Margulies, charged the other day with embezzling $2 million from his firm and clients in Minneapolis over the past 16 years.  Coincidentally-named lawyer James Margulies of Cleveland was charged the other day in a $60 million stock swindle.  A couple of weeks ago, two lawyers were charged with a mortgage-rescue fraud involving stripping $3 million in equity.   A lawyer went to prison a little before that for rigging tax-lien auctions.

That’s just a handful of headlines from this month alone.  But it’s been going on for several months now.  We’ve been noticing lawyers getting charged with increasing frequency ever since last July when Marc Dreier got sentenced to 20 years for hedge fund swindles totaling God knows how many hundreds of millions of dollars.  It really kicked into high gear, however, in December, after Scott Rothstein was arrested for a $1.2 billion Ponzi scheme.  And now there are several cases being announced every month.

What’s going on here?

Sure, these kinds of schemes tend to get noticed all at once, when the economy goes south, and the market’s gains no longer mask the fraud.  So we’re not wondering why all of a sudden there’s a bunch of financial-fraud arrests.  Our question is how come so many of these cases involve lawyers.

Has the profession changed?  Is it something new about how lawyers are getting more involved as investment managers and financial advisors?  Or is there a new focus by law enforcement?  We really don’t know.

But it sure looks like something’s going on out there.  What do you think?

Getting Particular

Tuesday, May 25th, 2010

clarity

There’s a great post today on the New York Criminal Defense blog, explaining the history and proper use of the Bill of Particulars in NY criminal practice.  Our readers are encouraged to check it out here.

This has long been a pet peeve of ours.  An astounding number of prosecutors just don’t get the concept of a Bill of Particulars in this state.  And far too few defense attorneys and judges hold the People to their obligations here.

Which is bizarre, because it’s really quite simple.  All the Bill needs to do is specify what facts the People intend to prove which make out the elements of the crimes charged in the indictment, without explaining how the People intend to prove those facts.

For example, a buy-and-bust with stash and cash might have a Bill that states, at such-and-such time and place, “the defendant handed to an undercover police officer two bags containing crack cocaine in exchange for money.  Twenty-four bags containing crack cocaine were recovered from the ground where the defendant threw them.”  That’s all that’s needed.  No mention is required of how the People will prove the stuff is crack, or anything about the money that was recovered, or anything else.

And yet prosecutors keep doing it wrong.  We routinely get Bills of Particular that contain nothing more than bare conclusions of law, such as “the defendant sold crack cocaine to a police officer and possessed crack cocaine with the intent to sell it.”  Or worse than that, just a recitation of the time, date and location, and an assurance that the indictment contains all the information that is needed.

Failure to provide a sufficient Bill renders the indictment defective.  We’re amazed that more defense counsel don’t pursue this aggressively, and educate their judges who may be a little complacent given the lack of rigor by many attorneys.

Once again, we highly recommend this article to our readers.  It was written, by the way, by Jill Paperno of the Monroe County Public Defender’s office, so kudos to Jill.

Our Inhuman Response to Domestic Violence

Thursday, May 13th, 2010

witnessed abuse

Last night, we attended a domestic violence forum sponsored by the Children’s Aid Society here in Manhattan. We’ve been involved with the CAS for many years, and they do some pretty awesome things for kids in intense situations. And domestic violence is a deep and complex social issue we come across plenty. So we figured it might be worth checking out, and maybe come away with some new insights.

It was, and we did, but not in the way we’d expected. There was very little discussion of the causes of domestic violence, the various patterns of behavior of abusers and victims, what actions work to stop it and what doesn’t work, and challenges to be overcome in reducing the incidence of domestic violence. Those are sort of the kinds of topics we expected a domestic violence forum to get into, but unfortunately the talks were pretty much surface discussions of what the speakers do in their jobs, and the kinds of things they deal with.

That’s okay, we guess. The speakers were social workers, and most of the audience seemed to be social workers. So it’s probably nice that they got to hear what others in their field are seeing. But for anyone with a passing familiarity with domestic violence issues, there wasn’t much we’d consider enlightening.

Except for one thing. (more…)

Holder’s Wrong. Terrorism’s No Reason to Relax Miranda

Monday, May 10th, 2010

terrorist lineup

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because (more…)

Gawker Gets It Wrong

Tuesday, April 27th, 2010

gizmodo

As everyone reading this is probably aware, last Monday the website Gizmodo announced an exclusive look at Apple’s iPhone 4, which hasn’t been officially released yet. In their post (here), they said “you are looking at Apple’s next iPhone. It was found lost in a bar in Redwood City, camouflaged to look like an iPhone 3GS. We got it. We disassembled it. It’s the real thing, and here are all the details.” The post was written by blogger Jason Chen, and featured video of him showing details of the phone, and a lot of photos.

As time went on (see all the posts here), it came out that Gizmodo had paid $5,000 for the phone. The guy they bought it from wasn’t the phone’s owner, but had merely found it in a beer garden back in March. An Apple employee had lost it there.

So, if they bought it from someone who wasn’t the owner, and they knew it was supposed to be a secret, did the folks at Gizmodo commit any crimes here?

Law enforcement got involved very fast. By Friday, law enforcement in San Mateo had gotten a search warrant (viewable here) to seize Jason Chen’s computers, disks, drives, and any records pertaining to the Apple prototype 4G iPhone.

The search warrant was executed that same day, and a bunch of computer stuff was seized (the inventory is also viewable here).

Yesterday, the chief deputy district attorney for San Mateo County told the WSJ’s “Digits” blog (here) that nobody’s saying a crime happened or not. They’re still investigating.

Meanwhile, however, Gawker Media (the owner of Gizmodo) issued a letter on Saturday (viewable here) stating that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.”

In support of that statement, Gawker Media cited California Penal Code §1524(g) (viewable here), which prohibits search warrants for items described in Evidence Code §1070.

Evidence Code §1070 (here) says a judge can’t hold a journalist in contempt for refusing to disclose his sources, or for refusing to disclose unpublished information gotten while preparing a story.

So we have to ask, does Gawker Media know what it’s even talking about?

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There’s a big difference between a search warrant and (more…)

Conviction Rates Matter

Tuesday, December 15th, 2009

ruins

On Sunday, the Philadelphia Inquirer published a lengthy article on that city’s abysmal conviction rate for violent crimes. For every three violent-crime arrests in Philadelphia, only one results in a conviction. There are a lot of worse-sounding statistics in that article, but they’re completely meaningless, as they refer only to convictions of the top count, ignoring the reality of plea bargaining. Still, this meaningful stat, the one-in-three conviction rate, is appalling.

Worse than that, about ten thousand violent arrestees walked, no conviction at all, in 2006 and 2007. Only 8% of that number were found “not guilty” after trial. The remaining 92% walked after their cases were dropped or dismissed.

At the same time, FBI stats show that Philadelphia has the highest violent-crime rate of all the big cities.

Coincidence? Of course not.

Violent-crime defendants aren’t getting convicted, and violent crimes are through the roof. There is causation there.

Conviction rates matter. A low conviction rate means the system is broken. If it was working, the rate would be 70% or higher. 33% = broken. Broken means people are being prosecuted for crimes when they shouldn’t have been charged in the first place. Broken means people aren’t getting punished for their violent crimes. And society suffers both ways.

We blame the prosecutors. More on that in a bit.

-=-=-=-=-

The Philadelphia courts have created a public perception that violent crime will not be punished. The odds of getting convicted are minor, and the odds of taking a felony are even lower. It doesn’t take too long for people to figure that out. And the bulk of crimes are committed by people who have frequent contacts with the criminal justice system. This critical demographic repeatedly experiences that the odds are in their favor. The system keeps reinforcing this perception that, if you commit a violent crime, you’ll probably get away with it.

Perception is everything in this system. In order to prevent crimes from happening, our system relies heavily on the deterrent effect of punishment. Deterrence is important. It doesn’t affect crimes of passion in the heat of the moment, but most crimes involve some planning or forethought, and those are the ones we want to make people think twice before committing. Whether they think twice or not depends on what they think might happen.

If people generally believe that a criminal act will probably result in punishment, then they will generally avoid that behavior. This would be true even if such acts were never actually punished (think of the budget savings, increased productivity, and human value society could preserve if we could devise such a system!). And the converse is true — if every criminal act got punished, but nobody realized it, then all that punishment would have zero deterrent effect.

In general, our system tends to fall somewhere between the two extremes. There is an amorphous sense that people can get caught, and that most of those who do get caught wind up getting punished. This perception results in a general background level of deterrence that’s meaningful.

Most law-abiding folks add a huge layer of deterrence on top of that, arising from the morals and ethics ingrained during their socialization and upbringing. But those folks aren’t the ones the criminal law really cares about. The law isn’t designed to deter them; it’s designed to deter those who would gladly commit such crimes if they didn’t they’d get punished.

Such people come from all walks of life. Sure, there are plenty of thugs from anarchic streets, who couldn’t care less about their victims or the rules. But there are also the spoiled suits who are just the same, caring nothing for their victims and thinking the rules don’t apply to them. For every crime, there are opportunists of every stripe.

And if the system fails to create the right perceptions, opportunists are going to take advantage of the perceived opportunities… obviously.

And that’s what’s happening in Philadelphia, it seems.

-=-=-=-=-

How did it happen? The Inquirer has 6 ideas. We think one or two might even be worth considering.

1) First, the Inquirer says that witness intimidation is working. Witnesses and their families are known to get killed in that city. That scares potential witnesses, who decline to come forward. So cases can’t be proven, and get dismissed or result in minimal plea bargains.

The way we see it, the number of such instances is vanishingly small, but the visceral significance of such instances is dramatic, and so the statistics have a lot more weight than they perhaps deserve.

Regardless, we still have a major problem with this explanation: What are the prosecutors thinking? If you don’t have your witnesses lined up, if you are not in a position to prove your case at trial, you have no business filing charges in the first place. You investigate before charging someone with a crime, not after. It is this blog’s position that any prosecutor who files charges before being able to prove them beyond a reasonable doubt is committing misconduct. The better prosecutors’ offices don’t allow such behavior.

But if the Philly prosecutors are having to get rid of cases because they couldn’t round up any witnesses, that means they were charging these cases prematurely and unethically.

So this “witness intimidation” excuse is really nothing more than a symptom of a deeper problem — that the Philly prosecutors are jumping the gun, and then having to deal with the consequences. And the result of their behavior is a public perception that violent criminals can get away with it. Well done, that DA.

2) The caseload is too high. The judges are too busy, says the Inquirer, so they “put a premium on disposing cases” rather than going to trial.

That’s just nonsense, of course. The vast majority of cases everywhere are disposed of before trial. It’s not the judges who make it happen, either. Defendants agree to plea bargains that cut their losses. Prosecutors agree to plea bargains that result in a fair sentence. And both sides avoid the enormous uncertainty, expense and risks of going to trial.

Plea bargaining does not begin to explain how two-thirds of violent arrestees don’t wind up getting convicted, nor does it explain a public perception that violent criminals are probably going to get away with it.

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

4) The Inquirer says the DA’s office doesn’t track how well or how poorly its cases fare, and as a result cannot prioritize the work of its 300 prosecutors.

That’s sort of irrelevant, really. 300 prosecutors is plenty. The Manhattan DA handles way more cases, and better, with not many more ADAs.

And prioritizing who’s working on what isn’t really something the stats ought to affect. A significant number of losses and dismissals are an indicator that a particular prosecutor might need to be reassigned, but wins and losses don’t affect where you focus your manpower. It’s really just a supply-and-demand thing — put the bodies where they’re needed, that’s all.

5) Philadelphia’s courts are uncoordinated. The basic logistics of getting the parties and witnesses together for trial becomes a disorganized fustercluck of delay. Eventually, cases just collapse because they can never be brought to trial. Defense attorneys know this, and take advantage of it.

We can’t speak to how things work in Philly, having never practiced there. But this doesn’t sound too much different from state court in New York. Unlike federal court, where your trial date is your trial date, NY state courts just set date after date until by lucky chance everyone is ready to go at the same time. It’s pointless and inefficient as hell, but it doesn’t seem to be a huge problem. Most cases get there sooner or later. (Our magic number is usually 5 — if we’ve answered ready four times, it’ll usually go on the fifth. YMMV.)

Getting the cops to show up is a hassle for state prosecutors everywhere. Cops think they’re job is done when they made the arrest, court keeps them from making more arrests, and they don’t like being cross-examined any more than the next fellow. But that’s a simple fact of life everywhere, and doesn’t explain why Philly’s any different. Ditto for herding cats and witnesses. And ditto for defense attorneys who take advantage of the government’s inability to get its act together. It happens everywhere. It’s really irrelevant here.

6) Finally, the Inquirer says the courts aren’t enforcing bail. “Defendants skip courts with impunity,” so that there are nearly 47,000 fugitives in that town. “Impunity” means they never forfeit their bail. The city courts estimate “a staggering $1 billion” in supposedly forfeited bail remains uncollected. Fugitives don’t get convicted, because they’re not in court.

That is appalling. The whole point of bail is to ensure a defendant comes back to court, by holding his money hostage. The defendant puts up his cash or gets a loan from a bondsman. If the defendant doesn’t show up when he’s supposed to, he loses his cash or the collateral for the bond.

But if the defendant never forfeits his bail, then bail serves no purpose.

-=-=-=-=-

Whatever the reason, the conviction rate in Philly is so low as to be counterproductive. The DA’s office is acting in ways that increase, rather than decrease, the incentives to commit crimes.

People are being chewed up by the criminal justice machine when they never should have been charged in the first place. Not all of them got dismissed or acquitted. Who knows how many more went through it and went to jail? And criminals are committing more crimes with impunity. Everyone suffers.

This low conviction rate is merely a symptom of a deeper illness. The DA’s office is charging people when it shouldn’t be. It’s either jumping the gun before enough evidence is in, or it’s abusing its discretion and taking on every single arrest, or it’s trying to extort pleas. From the evidence in this article, it looks like the DA’s office is the disease at the root of it all.

There’s going to be a new DA there in January. We’ll see if he does anything about it. In the meantime, on the whole, we’d rather not be in Philadelphia.

Supreme Court Noir

Tuesday, December 8th, 2009

Roberts Noir

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

-=-=-=-=-

At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

We’re Back, Did Ya Miss Us?

Friday, November 20th, 2009

So Much Win

Finally, the trial that would. not. end. is over. Three weeks to try a case that should have taken no more than five days. In the case that just would not end, either. The arrest was more than three years ago — that’s plenty long to have a felony case hanging over your head.

Especially one as over-charged as this one. A responsible prosecution team would have charged maybe 3 counts in this case. But for reasons unknown, the folks who originally brought the case in 2006 went into insane overkill mode, charging 18 counts.

Now, finally, 15 of those original 18 counts have been acquitted or dismissed. A lesser-included thrown in there at trial, to give them a second bite at the top count, was also dismissed. All the big charges got kicked, along with most of the little ones. The jury only said “guilty” to three of the b.s. minor charges that had been tacked on to this bizarrely over-charged indictment.

We’re calling this one a win, because this is precisely the outcome the client wanted on day one. It’s what he’s repeatedly asked for over the three years this case has been going on. And yet, from the get-go, this prosecution team has obstinately insisted on a plea to the charge, from day one. (They did so even after the judge, after their main witness had been pretty much destroyed in a day and a half of cross, firmly suggested that the offer be made.) It took three years, and three weeks of trial, to get to where this case should have been at arraignment. Where it would have been, had these prosecutors done the right thing.

Why didn’t they? Good question.

We come from the Manhattan DA’s office, where this sort of thing just isn’t done. This was not the crime of the century, there were no victims, nobody got hurt. The defendant didn’t commit perjury in a grand jury, not having testified. In a halfway decent DA’s office like Manhattan, the prosecutors would have exercised their prosecutorial discretion, as is their duty, and extended an offer.

But here, the prosecutors abused their discretion, by not exercising it in the first place. If you think that sounds like misconduct, we’re not sure we don’t disagree with you. But we’re still not sure, so we’re not identifying the office in question.

The likely reason is that there was a clash of personalities between the original prosecution team and the original defense team, which then became institutionalized over time.

The official reason, however, is just as unjustifiable. The official reason is that the defendant did not let the prosecutors break the law.

In New York, when a defendant hasn’t made bail and so remains in jail after arrest, we have a “speedy charge” rule. The government has six days to get an indictment, or else he gets released so he can do the rest of the case without posting any bail.

These prosecutors wanted the client to waive that requirement. They wanted him to agree to stay in jail for as long as they needed to get their act together and get an indictment in their own time. Because he didn’t, they said they would never make any plea offer whatsoever.

This is their official office policy, it seems.

And yet that is totally improper. It is nothing more than a policy forbidding the exercise of prosecutorial discretion, in retaliation for the mere refusal to give up one’s rights. That’s wrong on at least three levels.

That retaliatory aspect probably also explains why they over-charged this case so dramatically in the first place. And why they persisted in refusing to make an offer even after it was perfectly clear that they’d never get a conviction on any of the felonies.

-=-=-=-=-

Whatever the reason, they lost big-time here. The jury threw them a bone on some of the little stuff, but they can’t see that as a win. It’s nowhere near what they’ve wanted for three long years, what they got so invested in.

So yeah, we’re calling this a win. Not an epic win, but definitely a win.

-=-=-=-=-

Well, now we’re back, and we’ll have more time to blog on what’s going on out there. Plenty has gone on in the past three weeks — from the Bear Stearns acquittal, to Lynne Stewart starting her prison sentence, to a cop tasing a 10-year-old girl who wouldn’t take a bath. But it’s too late to blog in a timely fashion on those things. Sigh.

Oh well, there’s always more! Criminal law does not disappoint.

(Okay, we can’t resist. The girl who got tased? What’s up with that? We’re not talking about the cop using such extreme force on a little girl. We’re not all that concerned that he only got disciplined for not having a camera on the taser. We’re not even perturbed that he responded to a call of, essentially, “come arrest my kid who won’t take her bath.” We’re angered at the mom who made the call, and all the other moms out there just like her. This is a common symptom of the what Big Government programs and entitlements have done to ruin the very classes of people they were meant to help. We now have had generation after generation of people in inner cities and elsewhere who have been raised to expect government to do everything for them. They never have personal responsibility. Government provides all, does all. It also controls all. It takes charge of everything. When that’s all you know, then you reasonably expect government to take charge all the time. So moms commonly call the cops to make their kids clean their room, go to school, etc. The same moms (almost never raising these kids with a dad), lacking in a certain quale of personal responsibility, seem also to share the inability to properly rear and socialize their offspring. So these kids sometimes wind up getting locked up after the police arrive. And then the moms call their public defender in tears, unable to believe why their kid is locked up. Unable to comprehend the inevitable answer: “Ma’am, you put him there.” This is of a piece with the reasons why projects turn into ratholes, because it’s nobody’s responsibility to take care of them, it’s the government’s job. Why the schools suck, because the single factor affecting the quality of a school, parental involvement, is entirely absent because it’s not the parents’ job to educate, it’s the government’s job. This is a mindset that does not naturally occur in Americans. Maybe in Europe, where they are used to thinking of themselves as subjects rather than citizens, where the government has all the power and thus all the responsibility. But not in America. The only reason this mindset exists is because our well-intended big-government programs and institutionalization first removed the incentive to take care of oneself, and then destroyed the ability to do so. Rant off.)

Math Students Ace the LSAT, Pre-Law Students Suck

Wednesday, September 2nd, 2009

Avg LSAT Scores by Major

The LSAT is essentially the law school entrance exam in the United States. One’s score on that test is a big factor in determining which law school one will get to attend (if any). The law school one attends has an enormous influence on what sort of jobs will be available on graduation, and thus one’s entire career. So the LSAT is kind of a big deal, if one is considering a career in the law.

The college students most likely to be considering a legal career, of course, are those majoring in “Pre-Law.” So one would expect that, after four years of undergraduate preparation, they’re the most likely to ace that LSAT.

But as it turns out, Pre-Law and Criminal Justice students have the worst average scores out of 29 college majors. The students with the best scores? Math majors, Economics majors, and Philosophy majors.

The data has recently been published in a study by Michael Nieswiadomy, an Econ professor at the University of North Texas. The study, “LSAT Scores of Economics Majors: The 2008-2009 Class Update,” can be downloaded here.

Here’s what’s going on: The LSAT is mainly a logic test, with some reading comprehension thrown in. The logic problems aren’t terribly challenging — the logic puzzles one finds in the supermarket checkout line are much harder. But to answer them correctly, one needs to have an analytically-trained mind.

This is precisely the kind of mind that Math majors, Econ majors and Philosophy majors have formed during their four years of undergrad. (Physics is lumped in with Math because that’s all Physics is any more.) Philosophy is all logic and reasoning. These majors, in fact, essentially teach students how to think.

And that is precisely what law school does. Law school doesn’t teach you how to be a lawyer, but how to think and reason like one.

So really, it’s hardly surprising that the LSAT scores are distributed this way.

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College students have often asked us what courses they ought to take, to best prepare themselves for law school. Our answer has always been “History, Philosophy and Economics.” History, because that teaches you to analyze your sources and root out details, and also because the common law is nothing but history. Philosophy, because it teaches you to think and analyze and reason out an argument. And Econ, because half of the legal principles out there these days come from Economics, whether you realize it or not. All three of these, if mastered reasonably well, provide a rock-solid foudnation for the practice of law at the highest levels, as taught in the finest schools.

And apparently, they help you get in, too.

(Hat tip: TaxProf Blog)

Yet More Prosecutorial Misconduct by the Feds

Tuesday, August 18th, 2009

peroration

We’ve asked it before, but what the heck is going on with some of these federal prosecutors nowadays? There was the whole Ted Stevens fiasco over the winter, when the feds actively withheld exculpatory evidence and witnesses in their rush to convict the former Senator. Then the 7th Circuit directed an acquittal after the feds blatantly misrepresented the facts in a food labeling case. The W.R. Grace case was screwed by federal prosecutors who withheld exculpatory evidence and gave the judge reason to say he has “no faith in anything the Government says” any more.

And now we get yet another case of the feds blatantly misrepresenting the facts. This time, the 9th Circuit reversed and ordered a new trial, though it’s doubtful that there will be another one.

The case is U.S. v. Reyes, decided this morning. This was one of those options backdating cases that were all over the news for a while back in ’06 and ’07. (“Backdating” is when a company retroactively picks an effective date for stock options, so as to maximize the potential value of those options. It’s a crime when the extra value isn’t accounted for as an expense, because then the books give investors a false image of the company’s finances.)

Gregory Reyes was the CEO of Brocade Communication Systems. In August 2006, Reyes was charged with securities fraud and related crimes for backdating options without properly accounting for them. At trial, his defense was that he had no intent to deceive. He just signed off on the options in good-faith reliance on his company’s Finance Department.

High-ranking Finance Department employees had given statements to the FBI, describing how they knew all about the backdating scheme. But they didn’t testify at trial. Instead, the prosecution called a Finance Department employee who said she didn’t know about the backdating.

The prosecutor was well aware of the fact that others in the department knew all about it. But during closing arguments, he told the jury that the Finance Department employees “don’t have any idea” that backdating was going on.

After several days of jury deliberations, Reyes was convicted. He was sentenced to 21 months in prison with $15 million in fines. That was stayed pending appeal.

This morning, in an opinion byJudge Schroeder, the 9th Circuit held that this was prosecutorial misconduct, and reversed the conviction, ordering a new trial. Reyes argued that he didn’t know the Financial Department wasn’t accounting properly for the backdating, and the feds argued that the Financial Department didn’t know about the backdating. So that was a key question for the jury to decide. And the feds had lied to the jury.

And this wasn’t just a simple little throwaway line, either. The prosecutor did not even limit his argument to the testimony of the witness he’d cherry-picked to give the false impression that nobody in the Finance Department knew about it (which might actually have been permissible). No, the prosecutor:

asserted as fact a proposition that he knew was contradicted by evidence not presented to the jury. In direct contravention of the statements given to the FBI by Finance Department executives that they did know about the backdating, the prosecutor asserted to the jury in closing that the entire Finance Department did not know about the backdating, and further that the government’s theory of the case was that “finance did not know anything.”

“Our theory is that those people didn’t know anything. . . . [The cherry-picked witness] says finance didn’t know. Did you need everybody in the Finance Department to come and tell you that they didn’t know?”

The government even displayed for the jury a diagram explaining the prosecutor’s position that the Finance Department did not know of the backdating. The prosecutor asked the jury to assume other employees of the Finance Department would testify that they did not know about Reyes’ backdating procedure, when the prosecutor knew they did.

Federal prosecutors have “a special duty not to impede the truth.” As the 9th Circuit pointed out today, there is good reason to hold prosecutors to a higher standard: Their words carry the weight and imprimatur of the government itself, which can be very persuasive to a jury.

The 9th Circuit didn’t go so far as to direct an acquittal or dismiss the indictment, because the defense had also played it pretty aggressively. Instead, they ordered a new trial. It is anyone’s guess whether the feds will be up to the task of trying the case all over again, years after the fact. But we’ll go out on a limb and predict that this case will never see a jury again.

For crying out loud, feds! And for shame.

7 Criminal Defense Lawyers to Avoid

Monday, July 20th, 2009

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:

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1) The Dilettante

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You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”

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2) The True Believer

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This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of objectivity here. This is the hallmark of the True Believer. She is immune to reason. She is incapable of seeing your case for what it is, flaws and all. She’s crossed the line from “zealous advocate” to “zealot.”

The True Believer has an anti-authority streak so wide, it blocks her vision: All cops are liars! All evidence is planted! All confessions are coerced! The system is corrupt! It’s just a machine that shoves innocent people into prison! It’s racist! It’s classist! It’s… you get the picture.

Her clients may feel good, knowing that she is so strongly on their side. But her clients suffer for it, in the end. Maybe there really was rock-solid evidence against them, and a conviction was practically guaranteed, but a decent plea bargain could have been negotiated. It didn’t happen, though. She’d rather take a spectacular defeat than earn a quiet victory. And now the client is slammed with a sentence that’s more severe than they could have gotten.

Or maybe the case did have weaknesses. Sometimes the evidence is flawed. Sometimes the cops do lie. Sometimes there was a rush to judgment. But who is going to believe a defense attorney who has made a career of crying wolf? Certainly not the judges and prosecutors who have put up with her antics all these years. And that’s too bad, because had she retained some credibility she might have been able to convince them to drop the case, or at least reduce it.

The True Believer is hamstrung by her belief in her client’s innocence. She is incapable of giving wise counsel, dealing with obstacles, or negotiating with the government.

The True Believer’s clients suffer worse penalties because of her. And the injustice of it all only feeds her convictions, of course. It’s so unfair! Nobody listens to the truth! It’s a conspiracy of apathy! It’s systemic racism! And so it goes…

Identifying traits: Righteous indignation. Tendency to substitute slogans for thought. Willing, if not eager, suspension of disbelief.

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3) The Social Crusader

white-guy-in-dreads.png

Not to be confused with the True Believer, the Social Crusader is out to change the world. The system is broken, and he’s going to change it! That is a laudable goal, of course. And there are ways it can be achieved — perhaps through getting involved in politics, writing editorials, and the like. But instead of trying to persuade those who actually make the rules, he’s taken his political activism to the one place where it does more harm than good: the courtroom.

It doesn’t matter if the Social Crusader thinks that a drug crimes are punished too harshly; his client is still going to be punished according to those laws. It doesn’t matter if he thinks capital punishment is inherently cruel and unusual; his death penalty client still faces it. It doesn’t matter if he thinks the police shouldn’t be allowed to search places that the law lets them search; the evidence is still going to be admitted.

The Social Crusader wastes his time fighting the law from within, and his clients suffer dearly for it. Instead of challenging the evidence, and perhaps winning the case, he fights policy and loses. Because it’s not about right or wrong, it’s about what can be proved.

The Social Crusader also cannot negotiate. How could he even think of allowing his clients to plead guilty to something that shouldn’t even be a crime? So forget about getting a good plea bargain with this guy.

This guy simply doesn’t understand that political activism is not his job right now. His job is to get the best outcome he can for his client. One does this, not by arguing what the law ought to be, but by dealing with the law as it is. Instead, he’s living in a fantasy world, ignoring cruel reality. His client, living in real life, suffers for his lawyer’s failure to deal with it.

Identifying traits: Says things like “draconian drug laws,” “someone ought to do something about…,” “the law is an ass.” Tends not to wear suits, preferring activist chic that sends a message, an anti-suit that is just barely permissible in court. Weird hair. Doesn’t talk about you or the facts of your case much, if at all.

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4) The Whiner

whiner.png

At first glance, this lawyer seems like she’s totally going to bat for you. She’s constantly advocating for her clients, trying to get prosecutors to make better offers. When she’s not on the phone, she’s in court making an argument. What’s not to love?

The problem is that she’s not actually making arguments. As Michael Palin put it, “an argument is an intellectual process,” and that’s not what’s happening here. Instead of saying things like “here’s why my client deserves a better offer,” the whiner resorts to “why can’t you just give him a misdemeanor?” or “aww, c’mon, can’t you give him probation?” Repeatedly. Over and over again. In every phone call. A typical conversation might go like this:

Whiner: Oh, come on, why can’t you just give him a misdemeanor?

Prosecutor: Because he sold heroin to an undercover and three others in a school zone, he doesn’t have a drug problem, and this is the third time he’s been caught doing it. He’s already had his second and third chances, and I’m not going to offer anything less than a year this time around. Now of course, I only know what the cops told me, and if there is something else I need to know that would change my mind, I’d love to hear it.

Whiner: But I don’t understand why you can’t just offer the misdemeanor!

Repeat for ten minutes.

The strategy may be simply to wear down the other side until they give in. But we’ve never seen it work. All one gets is a pissed off adversary who is entirely justified in never returning one’s calls again.

The Whiner tries the same tactics on judges, with even less success.

One would think that, after having this strategy fail time and time again, the Whiner might consider trying something new. But she doesn’t. She just whines harder.

True story: We were in court watching a pathetic performance by a Legal Aid lawyer widely known to be one of the worst Whiners. As usual, it didn’t work. Later, out in the hallway, we saw her supervisor chastising her. Really laying into her. What was the supervisor saying? “You weren’t whining enough! You need to be whining more! Why weren’t you nagging them?” And more of the same. We kid you not.

So apparently some defense attorneys are actually trained to do this. But it’s lazy, substituting persistence for advocacy. Instead of thinking or doing some actual lawyering, the Whiner just tries to wear down the opposition with entreaty and supplication. It’s not a strategy we would advise.

Identifying traits: Permanent pout or moue. Nasally voice. Puppy-dog eyes.

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5) The Fraidy Cat

nervous-guy.png

It’s true, some lawyers really are afraid of going to trial. Maybe they have stage fright. Maybe they don’t know what to do in front of a jury, and know it. Maybe they’ve had one too many bad experiences. Whatever the reason, they’ll do anything to get out of going to trial.

That’s not a good trait for a defense attorney to have. Sure, 99% or more of criminal cases never go to trial. But nobody knows which ones are going to be the lucky few that do. As time goes on, and a case starts looking more and more like it might actually go to trial, the Fraidy Cat starts getting the urge to just take an offer — any offer.

There are two problems with that. First, some cases really do need to go to trial. Sometimes the cops got the wrong guy. Sometimes the evidence just isn’t good enough. Sometimes, people get acquitted. But nobody gets acquitted until after they’ve had a trial. And Fraidy Cats don’t go to trial, so their clients aren’t likely to get acquittals. Their clients are more likely to get counseled on the wisdom of taking a plea instead. (Now many of those clients probably should take a plea, but what about the handful who maybe shouldn’t have?)

The second problem is that criminal practice is a small world, and reputations get around. A lawyer who has a reputation for backsliding on the eve of trial is just not going to get great offers. Even in a difficult case with tricky evidence, where ordinarily a prosecutor might be willing to lower his offer to avoid the uncertainty of trial — there’s no need to do that, when everyone knows this case is never getting in front of a jury.

The Fraidy Cat is often a Whiner as well.

Identifying traits: It can be hard to differentiate a Fraidy Cat from a normal lawyer. One of the best ways is to insist at your first meeting that you won’t plea bargain, but will insist on a jury trial. And watch his eyes. If he tenses up like a cornered baby rabbit, you might consider probing further.

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6) The Caseload Crammer

overworked.png

On the whole, it’s good to be busy. More cases mean more fees, and more job satisfaction. But too many cases can be worse than too few. The Caseload Crammer has way too many cases.

Often, the Crammer is getting most or all of his fees from low-paying court-appointed work. This kind of work is fine if one is starting a new practice, or wants to supplement one’s normal caseload with some indigent work. But these cases pay very little. A lawyer who relies exclusively on them is going to need to have more than he can probably handle, just so he can eat.

A client whose lawyer has hundreds of other clients probably isn’t getting that much attention. That may not be a problem if your case is strictly routine. It may actually be a bonus, if your lawyer does thousands of cases just like yours every year. If your facts aren’t that unique, if the issues are identical to everyone else’s, and he knows what he’s doing, then it might be okay.

But what if your case isn’t the same as everyone else’s? If your case has unusual facts, unique issues or tricky questions of law… sorry, but this lawyer just doesn’t have time to deal with it effectively — if he was even able to break from routine enough to spot the issue in the first place. He just can’t afford to do the work your case requires. If he takes time away from his other cases to put in the hours your case needs, then he risks committing malpractice in those other cases. He’s more likely just to put in the minimum effort on your case.

Don’t take our word for it. This is exactly the argument that court-appointed lawyers make when they ask for higher fees: Such a lawyer needs to take on so many cases at the existing rates that he flirts with malpractice just to make a living.

Identifying traits: Malnourished. Sleepless, red eyes. Tends to recite courtroom litanies in his sleep.

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7) The Showoff

empty-suit.png

Here’s another one that seems fine at first glance. He seems great! After all, he told you so himself. The Showoff likes to brag and boast and bluster about how amazing he is. He may wear too-expensive suits, and unnecessarily showy jewelry. He knows everyone, as he’s sure to let you know. And he may be pretty well-known himself. In fact, one of the most dangerous places in town is any spot between him and a TV camera.

But behind the boasts, there is no substance. The Showoff is just an empty suit.

But how can you tell if someone’s just a Showoff? After all, there’s nothing wrong with bragging. We all do it, and clients like to know that they’re hiring someone with experience. And it’s good and proper to dress as well as one can. And there are plenty of well-known attorneys who have earned every bit of their fame.

The problem with the Showoff is, he just doesn’t have what it takes any more — if he ever did. He can’t live up to his own hype. He may have had the chops once, back when he was busy earning that reputation. Or maybe he just had some lucky breaks. But now he just can’t do the heavy lifting any more. You’ve been lured into thinking you’ve retained a superstar, and what you really have is nobody special.

Maybe it’s all the bragging and schmoozing and more schmoozing, so he doesn’t have the time to master the facts and issues of your case. Maybe it’s just that he’s coasting, and doesn’t realize he ought to be working harder. Whatever the reason, you’re not getting superstar representation. He doesn’t know the law like he should. He hasn’t learned the facts. He hasn’t grasped the complexities. He’s not prepared, and it shows. And that’s just deadly.

Identifying traits: Talks more about himself than about your case. Tendency to sell past the close. Slick as a phony politician.