Archive for the ‘Legal Profession’ Category

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?

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

Where will all the extra lawyers go?

Tuesday, June 28th, 2011


The New York Times had an interesting data crunch yesterday called “The Lawyer Surplus, State by State.”  Economic consultants EMSI estimated how many new jobs for lawyers there are going to be each year, in the near future, in each state.  Then they used the actual number of bar exam passers each state had in 2009 to figure out how many new lawyers would be competing for those jobs.  The results were worthy of remark.  Every single state except for Nebraska and Wisconsin is projected to produce more new lawyers than lawyer jobs.  (D.C.’s data was included, but isn’t comparable, as most simply waive in there.)

The results are worthy of remark, but they are hardly surprising.  Back when we were in law school in the mid-’90s, it was “common knowledge” (if uncited) that America had “more law students than lawyers.”  We recall reading that there was a surplus of lawyers back in the ’80s.  We wouldn’t be surprised if the same things were said in the ’70s and even before we were born.  And we’d expect to keep hearing such things for as long as the profession endures.

The number of lawyers at any one time, however, is probably just about right.  It’s simple supply and demand.  A practicing lawyer is only practicing because his services are demanded by someone.  If there is no demand for all the lawyers out there, market forces will ensure that the excess supply finds themselves pursuing other careers — whether they want to or not.  When people say there are “too many lawyers,” they usually mean “too many bad lawyers.”  (Which leads us to wonder how come you never hear that about other professions or occupations?  Nobody ever says there are too many doctors, or too many electricians, though surely there must be too many bad ones out there.)

But “too many lawyers” has a different meaning when spoken by law students and freshly-minted lawyers.  It means there are not enough jobs out there for everyone who’s going to be passing the bar.  Again, it’s a refrain we’ve heard before.  When we graduated from law school, just before the dot-com boom, we knew plenty of smart capable young lawyers who had a real hard time finding a job.  Everyone was bitching and moaning that people were racking up all this debt with no means in sight to pay it off.  Ditto a few years later when that bubble burst.  And now some years later when the finance bubble burst.  The only difference we can see between then and now is that these days the students and graduates are trying to blame everyone (except themselves) for their bad luck.  As we discussed a couple of posts ago, all that happened was a long-term shift in the demand curve, to which the profession reacted late and to which the law student population has yet to react.

Because young adults continue to flood into law school.  There’s been a bit of a dip here and there this year, but the numbers are still strong.  So it makes us wonder what’s going to happen to all of them as they enter a market that has no room for them.

The EMSI numbers seem reasonable.  They predict a nationwide surplus of more than 27,000 young lawyers each year for the foreseeable future.  We’re not talking about people who didn’t make the cut, people who went to law school but washed out.  We’re talking abotu JDs who actually passed the bar, and still won’t have a job waiting for them.

What are 27,000 surplus lawyers going to do each year?

Some of them will hang out their own shingle and (more…)

No Jobs for Your JD? An Economist Explains What Happened.

Monday, June 6th, 2011

Where did all the law jobs go?  And are they coming back?

Good questions.  More on that in a second.  But first, we have to say that we’re frankly tired of hearing law students and newish JDs moaning about the dearth of lawyer jobs to be had.  Particularly grating are the complaints that it’s somehow somebody else’s fault that they’ve got all this debt and no six-figure job to show for it.  Most of these put the blame on law schools for hoodwinking them into thinking the job market for attorneys was awesome.  We don’t get that — people who go to law school are grownups, adults with college degrees, but these ones are acting like they’re still kids.  Come on, at some point you have to be responsible for your own decisions.  Childhood ended a long time ago.  Anyway, one would think that someone intending to become a lawyer would have had the basic ability to research what the real job market was like.  A simple Google search would have turned up a plethora of articles and discussions about it, going back to mid-2008.  If they really had no clue what they were getting into, then they really need to re-think whether they’re in the right profession.

And if they’d bothered to research just a tad more, they’d have found that this ain’t the first time law jobs have been harder to come by.  This kind of thing happens every now and then.  It’s cyclical, just like anything else.  Demographics, economic cycles, and the coming and going of fads have all affected whether there’s enough hiring going on.

One need not understand why it was happening.  But for college-graduate adults to not even know that it was happening?  And to make life-changing, debt-incurring decisions based on law schools saying their graduates had good-paying jobs?  (Or worse yet, based on a fantasy that has never been true, that anyone but the top grads from the top schools would be making the big bucks right out of law school?)  That’s just idiotic.  Such complaints call into question the very ability of the complainer to have practiced law in the first place.  It makes you sort of glad they didn’t find a job, kinda.

Although one need not understand why it was happening, however, it’s still worthwhile asking the question.  We’ve had our own theories, but they’re based more on intuition and anecdote than on any rigorous analysis.  So it’s good when, from time to time, someone pops up with an explanation.

With respect to the latest turndown, our basic understanding was always (more…)

Can Computers Replace Lawyers?

Thursday, June 2nd, 2011


In a post on the future of law schools, Josh Blackman predicts that “many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity.  …  This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.”  That’s not quite true.  Automated legal advice is not workable in the foreseeable future.

But he does have a valid point.  A huge amount of the law really is formulaic.  Whether it’s tax law, or commercial law, criminal law, or what have you, a lot of it breaks down to a series of “if-then” statements.  So can software really replace what lawyers do?

Actually, yes.  It can replace a lot of what judges do, too, for that matter.  Rulings, etc.

Software cannot replace the judgment and creativity required for coming up with effective strategies, adapting the law, or persuading others.  Spotting the actual issue from a mess of facts, notwithstanding what the client happens to think the issue is. Figuring out what needs to be done and how best to do it. Coming up with the right questions, to get the most accurate data.  These are all human skills that algorithms just can’t handle at the moment.  These are the high-level functions that you’ll still need a lawyer for.

But a lot of lawyering really can be done by flowchart.  Once the issue’s been identified, it’s just a matter of selecting the correct law to apply, plugging the relevant data into that formula, and seeing what the answer is.  For a lot of junior associates, this is a big part of their job description.  The flowcharts can branch intricately, but that doesn’t make them any less formulaic.

It’s wrong to suggest, however, that people will be able to replace their lawyers with (more…)

Is Law School Right for You? Ask Yourself 5 Simple Questions.

Wednesday, May 25th, 2011


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…)

Making a Mockery

Tuesday, May 17th, 2011

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


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.

Feeling Left Out

Thursday, May 12th, 2011

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.


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.


Wednesday, March 16th, 2011

We have some strong feelings on the nature of the law as a profession.  And by “profession,” we don’t mean the colloquial usage of “job description.”  We’re talking about the concept of a calling — a calling to the service of others where one’s own personal interest must be secondary to the interest of those served.  A true professional is not one who does his job well, but one who truly acts first and foremost for those he serves.  There are only three true professions: the clergy, medicine, and the law.  It not much of an exaggeration to think of it as a sacred calling.

Here at the Criminal Lawyer, we haven’t been too shy about saying that if you’re in the law for the money, then you don’t belong here.  There’s nothing wrong with making money as a lawyer.  There’s nothing wrong with making a lot of money as a lawyer.  But if the money is the reason why you go to the office, then you do not belong in our profession.  And we’d both be happier if you left.  (And if you’re a law student thinking of joining our profession in order to get a nice income, you doubly don’t belong here.  Because on top of having the wrong reasons, you also seem to lack the basic research skills to realize that most lawyers aren’t exactly making a killing.)

We’re not going to rehash all our thoughts here.  Feel free to scan our archives for the tags “legal profession” or some such, if you’re really interested.  But we took a moment during a break from trial this afternoon to skim Scott Greenfield’s blog, and he had a great post today coming at this issue from a different angle.  So here’s a paragraph which we are offering for its truth:

The underlying problem, which cash-obsessed lawyers fail to recognize, is that they never should have been lawyers at all.  It’s hard to practice law.  Being a professional requires sacrifice, dedication to someone other than yourself.  it’s fine that some people don’t have a feel for such things, but then they have no business being lawyers.  Let the brain drain happen, and let’s rid the ranks of the legal profession of those who elevate profit over dedication to their clients.  They never should have been lawyers to begin with, and their loss is not only a non-problem, but a benefit to those who remain.

And you can read the rest of it here.

ABA Tells Courts to Provide Detailed Brady Checklists

Monday, February 14th, 2011

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

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

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

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

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

Online Advice

Thursday, February 10th, 2011

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

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

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

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

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

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

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

Why Become a Lawyer?

Monday, December 13th, 2010

In today’s environment, where law schools are churning out way more lawyers than the market really wants, plenty of law students and recent grads are wondering if it’s really worth it.

We’re asked this question, in various forms, all the time.  And we see it asked every day on various internet fora.

Our answer is always a resounding YES! …if you’re going into law for the right reasons.  It’s worth it.  Oh yes, it surely is worth it.

Now, if you’re going into law just for a nice paycheck and some prestige, you’re doing it for the wrong reasons.  And it’s probably not worth it unless you’re so smart and accomplished that you can be hired by a big firm (and yet not quite bright enough to figure out that, except for a few awesome firms, doing so is essentially trading your life for a living, and putting off any further accomplishments for the next several years).  If you’re not already a superstar at what you’ve been doing with your life thus far, odds are you’re not going to morph into one during law school.

And if you’re doing it because you can’t think of anything else to do, it’s so obvious that you’re doing it for the wrong reasons that it’s a waste of space to even explain it here.

So what are the right reasons?

It’s going to be different for each person, because the right reasons are always personal.  It’s something about you, who you are, what purpose you want your life to have.  But if you’re doing it for the right reasons, you don’t have to be the smartest person in the room.  You don’t have to graduate in the top third of your class at a top-tier school.  All you need to do is bust your ass in school to master the material and learn how to think like a lawyer, then bust your ass once you’ve got that JD and make sure you goddamn well fulfill your purpose.

Again, the reasons are going to be different for each person.  We can’t describe what the right reasons for you might be.  But we can tell you what our reasons were.  Maybe that will help illustrate what we’re talking about.


Why did we go to law school?

Two words: Frank Johnson.

Most of you have never heard of the guy.  He’s not in the (more…)

Study Finds Rampant Prosecutorial Misconduct in California

Wednesday, December 1st, 2010

The Northern California Innocence Project at Santa Clara University School of Law has released a troubling study of prosecutorial misconduct in California.  The report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” opens by pointing out that of course the majority of prosecutors behave ethically, but then it dives right into more than a hundred pages of statistics and analysis of a systemic and system-wide crisis, and the ineffectual attempts to deal with it.  (For those in a hurry, the 8-page executive summary is here.)

The period of this study coincides with our own career — we got our JD in ’97, and spent the next several years prosecuting before joining the side of the angels.  We were intrigued to see if the results of the California study meshed with our experiences in New York.  (The overwhelming majority of our colleagues at the Manhattan DA’s office were extremely ethical and took such things seriously, but we did have occasion to note and object to certain practices.  On the defense side, dealing with all kinds of state and federal offices, we’ve seen more sloppiness and lack of judgment than actual misconduct, though again there has been the occasional bad act.)

The study reviewed a sample of 4,000 cases during that 12-year span, where an appellate court was asked to make a finding of prosecutorial misconduct — the most in-depth such study anywhere, ever — and found 707 where a court decided there really had been misconduct.  As the summary puts it, that’s about a case a week.  When you consider the simple fact that only the rarest case of prosecutorial misconduct gets appealed — only about 3% of cases even go to trial — plus the fact that a great deal of such misconduct can never be discovered by the defense (such as Brady violations), the true quantity of misconduct must necessarily be a dramatic multiple of the study data.

Most of the prosecutors who commit misconduct, the study found, do so repeatedly.  Why?  Because they get away with it.  They almost never get caught.  And when they do get caught, there aren’t any personal repercussions.  Disciplinary action is so rare as to be practically unheard of.  And civil liability isn’t going to happen, because they have absolute immunity for their official conduct.

The study concludes that “the scope and persistence of the problem is alarming.  Reform is critical.”  It’s not a problem just of a few rogue prosecutors.  It’s a problem of the judges who don’t deal with it, a system that doesn’t deter it, offices that don’t stop it.  It’s the problem of the good prosecutors, whose authority and trust suffer by association.  It’s the problem of the innocent, who find themselves convicted time and again because the prosecutor sought a victory rather than justice.  It’s the problem of the guilty, who are denied their rights to due process and constitutional protections.  And it’s the problem of the criminal justice system, which relies entirely on prosecutors doing their job right in order for the system to function at all.

What reforms do they suggest?  Revised ethical rules, for one, to bring them more in line with the ABA’s model rules.  Some actual disciplinary action by the state bar, when the rules are broken.  Replacing absolute immunity with immunity only for official conduct that wasn’t misconduct.  Better reporting of misconduct findings, including the prosecutor’s name and the kind of violation.  Better ethical training for prosecutors, and internal procedures for preventing and dealing with misconduct.  It’s all pretty much common-sense stuff, already in practice in plenty of states.

It’s a shocking report.  The players in California’s criminal justice system need to get their act together, and fast.  This is a wakeup call — let’s hope they heard it.