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February 28, 2009

Understanding and Reducing Attorney Fees

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 4:00 am

Consumers of legal services won’t find much information online or at their public library to help them keep their costs down when they hire a lawyer.  Some websites or firms might hawk their own services or materials as being a great value, or as an option far cheaper than using a lawyer, but almost no one — including bar associations and consumer groups — has compiled general tips on how to make legal services less expensive when you turn from prospective consumer to client.   Therefore, when I heard a couple months ago that the legal reform group HALT published a free, online Citizen Legal Guide titled “Understanding Attorney Fees So You Can Keep Legal Costs Down” (November, 2008; 8-pp. pdf. version), I was quite pleased.  Unfortunately, once I read it, my reaction to HALT’s Fee Guide was like f/k/a‘s fictional Prof. Yabut:  “Yeah, but . . . “.

HALT has been working for over 30 years to achieve “Simple, Affordable, Accountable Justice for All.”  f/k/a and our self-help-law sister weblog SHLEP have quoted and linked to HALT, its studies, Report Cards, and guides scores of times, beginning on our very first day of blogging in 2003.  To my surprise, however, I was disappointed by HALT’s Understanding Attorney Fees [“UAF“]. It correctly advises consumers that:

“If you find yourself with a legal question, you should explore all of the options available to you and become educated about your legal question. You may actually find that you do not need to hire an attorney. . . . However, if your legal matter is complex, substantial money is at stake, you’re charged with a crime, or you’re simply uncomfortable handling legal matters on your own, you’ll probably need to hire a lawyer.”

However, for those who do need to hire a lawyer, there is simply too much left unsaid in Understanding Attorney Fees about how to keep your legal fees down.  The HALT Guide does note that “As a legal consumer, your best defense against paying more than you should is to educate yourself about legal fees before signing on the dotted line.”  And, it promises to explain “the most common billing arrangements used by lawyers, some new billing arrangements lawyers are using and specific ways you can lower your legal costs.”

Nonetheless, for our money, HALT’s Understanding Attorney Fees:

  • Offers very little help for controlling or lowering fees that are based on an hourly rate for the lawyer’s time — not when the client is entering into an hourly billing agreement, while the services are being provided, nor when presented with a periodic or final bill.
  • Takes a real dive on contingency fees, completely ignoring HALT’s own position on such fees from a decade ago, as presented in its Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997; issue no longer online).  At that time, HALT insisted that p/i lawyers should be charging clients a lower percentage in less-risky cases, rather than using the same standard contingency fee for virtually all clients (i.e, one third or 40%).  Lawyers were also required to provide the client with key information and estimates relating to risk prior to entering a fee agreement, with the information included in the signed agreement.  Frankly, the contingency fee section in the UAF Guide sounds like it was ghost-written by the plaintiff’s personal injury bar.  It doesn’t even mention the word “negotiate.”
  • Seems to offer a blanket endorsement of “alternative” billing methods, with very little help on how to shop for such fees, and no warning that some lawyers offering alternative fee arrangements in fact intend to extract higher fees than possible when billing by the hour (e.g., so-called Value Pricing).

. .   We hope consumers will read HALT’s “Understanding Attorney Fees,” but we believe the HALT staff has left too much out of its Guide. There’s no way the f/k/a Gang can create a comprehensive new draft or supplement to HALT’s publication (especially since we are moth-balling this site tomorrow).  We will, however, summarize portions of HALT’s UAF Guide, suggest some tips for keeping fees down, and point to a few other helpful sources.

Consumers shopping for legal services need to remember that every kind of pricing arrangement can be exploited or misused to result in excessive fees or inadequate services.  For example, hourly billing might result in a lawyer doing too much, but fixed fees can lead to lawyers doing too little, and contingency fees can make you pay far more than is warranted by the risk the lawyer is taking of not being paid or by the amount of work that will be required of the lawyer.  See, e.g., our posts “other thoughtful voices on the lawyer billing debate;” and “the reality of alternate billing.”  Clients need to insist on more information and lawyers need to act in ways that create trust and give full value.

First, two quick points:

  • Unbundling can Save You a Bundle: With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks. If you think you’re willing and able to play a large role in your own legal affairs, but know you want or need a lawyer to help perform “discrete tasks” and serve as advisor and coach, look into Unbundling. (see our prior post; and this posting from SHLEP for an introduction); the excerpts from M. Sue Talia‘s book Unbundling Your Divorce can help you determine if they are good candidate. Find State unbundling rules here.
  • Do-It-Yourself/Pro Se: For information relating to do-it-yourself resources, see shlep: the Self Help Law ExPress [which was started by f/k/a‘s Editor], where you will find information on locating self-help materials, thinking about whether representing yourself makes sense for you, a Topic Index, and much more.

In “Understanding Attorney Fees,” HALT reminds consumers that “The type of arrangement you enter into can have a huge impact on the amount of fees you’ll pay, so it’s important to understand how each works and the incentives lawyers have for using them.”  It explains that:


February 26, 2009

crushed by clocks? insulted by intervals? [ALF#4]

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 12:10 pm

.. They’re peeved over time-based pay . .

note: this is #4 in our final week’s ALF Series on American Legal Fees; click for #1; #2; #3 . . and see our valedictory fee essay, “Understanding and Reducing Legal Fees“.

It’s my last week of posting, so I’m going to indulge myself and discuss a pet peeve or two of mine involving the rhetoric of lawyers and consultants who dislike (and often scapegoat) the billable hour.  Rather than sticking with logic, reason, or economics, they often employ hyperbole, overkill, psycho-babble, Straw Men and class warfare (not to mention ridicule).  As discussed below, they even insist that being paid by the hour demeans a lawyer.  Please.

Thus, as mentioned last week, Ron Baker’s acolyte and echo Christopher Marston recently insisted that “there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

Of course, I’m not an excrement expert (and Mr. Baker has accused me of ranting and raving and being “someone who lacks a rudimentary understanding of basic economics.”), but the not-buying-time cliche is just a silly Straw Man.  The client who pays by the hour, like anyone who employs a lawyer to do legal services, “wants” the lawyer to apply his or her legal knowledge, expertise and experience to the client’s problem or project.  Hourly billing is simply one way to compute compensation in a situation where the buyer does not employ the service provider exclusively (and the amount and type of services needed may not be reasonably discernible in advance).  As Prof. Jeffrey Lipshaw recently wrote:

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client. . . . [M]y intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

Similarly, Steven Matthews pointed out at last year, in “The Economist: Killable Hour” (September 1st, 2008):

“Neither party seems to care that much about the billing model. Cost certainty? yes. Getting value? yes. Those are worth fighting for, but method of billing? If clients or firms were demanding changes, wouldn’t we have seen it by now?

“The push-pull between clients & firms when negotiating price (and understanding costs, for firms…) is going to exist in either scenario, and frequently depends on the situation. Think: area of practice, work volumes, the substance & length of client-firm relationship, average time for matter execution, and so on. But rather than describing this balance to readers, the sensational prevails – pitting one billing model against the other in a full-on death match! I suppose it’s not sexy to say ‘different clients & matters may require different billing models’. A shame, really.”

At times billing by the hour is a reasonably good measure of the value of those services, and at times it may not be.  More price competition is needed for hourly rates, and abuses need to be eliminated, along with excessive quotas imposed on lawyers by their firms.  But, hourly billing is clearly not an inherently irrational, exploitative or unethical method for calculating price.  By painting hourly billing as the benighted source of all evil, proponents of alternative pricing methods hurt their credibility — especially, when they fail to acknowledge there are incentives inherent in every pricing method that could lead to unreasonably high (or low) fees. (see e.g., ALF#1; and our post “broadening the hourly billing debate“)

.. Mauled by Marxism! Demeaned by Da Man! Ronald J. Baker (see prior post), the guru of “value pricing” and ceaseless crusader against hourly billing, isn’t content with his price sensitivity charts and promises of higher fees in his quest to convert lawyers and accountants from the Almighty Hour.  Ron motivates poor downtrodden professionals with his brand of class-based snobbery.  He urges them to rise up to capture their true (higher) value by labeling hourly billing as Marxism, and contrasting his superior “knowlege workers” with mere “cattle,” “union workers,” “blue collar occupations,” and those who “work with their hands” rather than their heads, and are stuck laboring by the hour (see, e.g., here and there).

Meanwhile, the usually level-headed and clear-minded Bruce MacEwen of Adam Smith Esq, recently evaluated the billable hour (in “The NYT‘s Obit for the Billable Hour“, January 31, 2009).  Included in Bruce’s “Con the billable hour” list is this factor:

It’s dehumanizing, reducing talented and highly educated professionals to fungible units as factors of production.


February 24, 2009

don’t forget those Minimum Fee Schedules [ALF #3]

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 10:17 pm

.. Click for the video of ALF’s “Risky Business” spoof ..  .. [or, Heidi’s R-rated version]

note: this is #3 in our final week’s ALF Series on American Legal Fees; click for #1 and #2; and #4

While I was in law school, bar association Minimum Fee Schedules went from being commonplace, apple-pie, “old-time rock-n-roll” in the legal profession, to being Risky Business in violation of antitrust law.  The fee schedules were lists of recommended minimum prices for common legal services.   Through disciplinary actions and ethics opinions, bar associations made it clear that a pattern of charging less than the minimum fee constituted misconduct.  See, for example, this NY Bar ethics opinion from 1964; a 1961 Colorado Bar opinion; and the Virginia Bar opinion discussed by the Supreme Court at Fn 1. in Goldfarb.  The president of the New York Bar Association had himself requested the 1964 opinion concerning departures from the minimum fee schedule, and his so-called ethics committee agreed with him that:

“[T]o let it be known, by whatever means, that a lawyer will customarily charge for his services less than the recommended fees set forth In a duly adopted schedule is not in accordance with Canon 12 and is unethical as a form of solicitation and advertising.”

At the end of my 2L year, the Supreme Court’s decision in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), closed the book on those quaint little non-compete clauses, holding that the Fairfax County Bar Association’s minimum fee schedule was price-fixing in violation of §1 of the Sherman Act.  Until then, bar groups had gone around saying they could do whatever they wanted regarding fees, because there was a blanket “learned profession” exemption to the antitrust laws, and that they also had State Action immunity for conduct permitted by state courts in overseeing the legal profession.  However, as the case Goldfarb syllabus explains.

“The schedule and its enforcement mechanism constitute price-fixing, since the record shows that the schedule, rather than being purely advisory, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys’ desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding. . . .

“. . . It is not enough that the anticompetitive conduct is ‘prompted’ by state action; to be exempt, such conduct must be compelled by direction of the State acting as a sovereign. Here the State Bar, by providing that deviation from the minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and hence cannot claim it is beyond the Sherman Act’s reach.”

While in law school, we discussed the fee schedules a little bit in my Professional Responsibility class in 1974 (where my famous Harvard Law professor believed lawyers should not be allowed to advertise), and much more in my antitrust classes. [Thereafter, for more than a decade at the Federal Trade Commission, my law practice was focused on the anticompetitive practices of learned professions like medicine and law.]

I’m bringing up this topic now, before we close shop here at f/k/a, because I’m afraid far too many members of the legal profession (and virtually all of the public) have forgotten this chapter of lawyer history and lessons to be drawn from it and its aftermath.   A lot of lawyers reading this weblog have suggested the f/k/a Gang is far too suspicious of bar associations and lawyers when it comes to fees and competition.  But, I want the “don’t be such a cynic” crowd to remember the Minimum Fee Schedules and what they say about our profession.  For me, history (including rather recent history at that) clearly shows:

  • lawyers almost always feel underpaid and entitled to higher fees
  • lawyers hate competition, especially price competition and related advertising, and will use peer pressure and ploys like an appeal to the “dignity of the profession” to stifle rivalry
  • lawyers will exploit any pricing mechanism (turning it into a racket) — and will always find new ways to increase fees when one method of billing becomes disfavored


foxes guarding the golden eggs [ALF #2]

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 2:13 pm

– note: this is #2 in our ALF series on American Legal Fees; click for #1 and #3 and #4

.. .. ALF-Esq & Prof. Yabut discuss self-regulation .. ..

ALF: But, Yabut, why can’t the Melmac Bar & Grill sponsor the Feline Protection League?  You know how important cats are to us.

Yabut:  For snacks and meals, you mean.

ALF: Our motto remains: “we always serve you first.”

The f/k/a Gang has been writing about the lax, self-regulated lawyer discipline system since we started this weblog in the Spring of 2003. [See Should Lawyers Control Lawyer Discipline?, June 22, 2003, and links on our Lawyer Disciplinary System Page.]  Sleepy Bar watchdogs often seem to be enabling their lupine kin rather than protecting the sheep. Like the legal reform group HALT, we believe our nation should:

“Replace the failed system of self-regulation — lawyers policing lawyers — with disciplinary panels on which non-lawyers have a majority voice.” [see our post HALT Suggests a “Better Way to Discipline Lawyers” (June 25, 2003)]

For more, see HALT’s 29-page (pdf) paper “Consumers of Legal Services: Unprotected and Underserved,” which notes: “The system of attorney self-regulation is an abject failure and lawyers’ so-called ‘Rules of Professional Responsibility’ do not require attorneys to provide even the most basic consumer information to prospective clients.”  HALT urges the broader consumer advocacy community to join their efforts to help achieve “Simple, Affordable, Accountable Justice for All.”

Foxes in the Chicken Coop:   We’ve spent 6 years complaining about bar associations that act like mercantile guilds, by protecting lawyers from competition rather than clients from greedy lawyers. There is, in fact, no better reason to junk the self-regulatory system utilized by the legal profession than its utter failure to take its ban on unreasonable fees seriously.  In most jurisdictions, the rule against excessive fees has devolved in practice into merely a ban on outright felonious, fraudulent, or otherwise dishonest billing practices (e.g., billing for phantom hours, charging more than one hourly-fee client for a particular interval of time, keeping unearned retainers), rather than telling a lawyer “You’ve charged this client far more than your services of worth.”  As demonstrated by their reactions to opinions expressed at this weblog, many lawyers have convinced themselves that any fee a mentally-competent client agrees to is by definition “fair” and they should be able to charge whatever the market will bear.

Except for judicial review in million-dollar cases, the monitoring of excessive fees by the legal profession has been basically delegated to Lawyer-Client Fee Dispute programs.  When HALT reviewed such programs state-by-state in 2007, and issued Fee Dispute Report Cards, it found:

“The most pervasive complaint about lawyers is that their fees are too high for the work done. But in evaluating the programs established to settle these disputes between clients and lawyers, our Report Card found a system plagued by an appalling pattern of biased procedures, insufficient resources and little enforcement.” And,

“By allowing lawyers to refuse participation in the fee arbitration process, hiding information from the public about the system, placing roadblocks in front of consumers wishing to resolve a fee dispute, stacking arbitration panels with attorneys and refusing to assist clients in recouping their money, fee arbitration programs across the country are routinely failing to provide a much-needed service to American legal consumers. Until there is meaningful reform, the legal profession has only itself to blame for the widespread public belief that lawyer fees are out of control and going unregulated.”

If self-regulation isn’t to blame, how else can we explain:

  • So Little Guidance from the Bar or Bar Counsel on How to Avoid Hourly-Billing Excesses and Abuse: You have to look pretty hard to find actual, practical discussion from bar associations or official bar sources on how lawyers and firms can properly use hourly billing.  (One exception, which itself could use some amplification, is the 1996 Statement of Principles from the ABA Task Force on Lawyer Business Ethics).  As a result, far too many lawyers seem to have forgotten that:

—  Hours Expended x Hourly Rate is meant to be the maximum fee that a lawyer can charge under an hourly billing agreement.  The figure is not automatic or set in stone but,  as the ABA Statement of Billing Principles says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions for time that is not used in an efficient, cost-effective manner.

— Having multiple partners and associates billing their full hourly rates for attending a meeting or court session where they have virtually no active role is unacceptable.  In addition, as the ABA Statement of Billing Principles says, “If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.”

— Excessive time spent reviewing and rewriting the work of other lawyers suggests that the original work was not adequately done and should not be billed at regular rates, if at all.

update: See our valedictory post “understanding and reducing legal fees” (Feb. 28, 2009)


February 22, 2009

other thoughtful voices on the lawyer billing debate [ALF #1]

Filed under: lawyer news or ethics — David Giacalone @ 3:31 pm

We’re going to permanently stop production at this weblog on March 1, 2009.  As Your Editor and his alter egos wind down the blawg formerly known as ethicalEsq, the f/k/a Gang is going to do what we’ve done since the spring of 2003:  Focus our punditry on American Legal Fees [ALF], with our primary concern being not the welfare of lawyers but the interests of the client — especially, the “average,” unsophisticated or inexperienced buyer of lawyer services, who is often priced out of the marketplace or left with crushing debt after an encounter with a lawyer. [see our Fees Page for links to six years of posting on the topic; update: click for ALF #2 ; #3; and #4; plus our farewell fee opus “Understanding and Reducing Attorney Fees” (Feb. 28, 2009)]

In our last-days ALF Series, we’re going to try to be slightly less cynical than the cranky, mischievous, but goodhearted tv character Gordon Shumway, a/k/a ALF (the Alien Life Form, who was created by Paul Fusco).  We will, however, keep in mind this interchange with his earthly landlord and friend, Willie Tanner:

Willie: Some people are so blinded by the thirst for money, that it causes them to lose their values, and do things they shouldn’t do.

ALF:  Well, that explains Ghostbusters II.

We think it also explains much of what is wrong with American Legal Fees and the relationship between lawyers and clients.

…. While bemoaning too-high fees and too-low morale in the legal profession, ethicalEsq, Prof. Yabut and I have been saying for years just how silly it is to scapegoat hourly billing as the primary cause of either client or lawyer discontent.  Most of the things wrong with hourly billing are related to its abuse or to obscenely high hourly quotas imposed on lawyers by firms.  We’ve pointed out, therefore, that nothing much will change if lawyers switch billing methods but insist on making just as much money.  We’ve argued that each fee mechanism comes with its own anti-client incentives, noting that lawyers have found ways to manipulate every kind of billing scheme to produce fees that clients rightly consider to be excessive.  [E.g., see our 2005 “chronomentrophobia” posting; and “broadening the hourly-billing debate,” Aug. 18, 2007, which includes excerpts from many prior posts; and see our 4-part essay on contingency fees.]

In response, we’ve gotten virtually no support among the profession, but plenty of ridicule and distortion from those who would like to kill hourly billing — often in order to make even more money.  We’ve wondered when legal ethics experts and others with no financial stake would address this vital topic.   Thanks to a chance stop at the Legal Ethics Forum this week, I finally discovered a few other thoughtful folks who are unwilling to join the hourly-billing lynch mob and blindly embrace all forms of alternative billing as problem-free solutions.  It was no surprise at all, given our experience, that one of them was a Canadian law professor.

After seeing a much-emailed article in the New York Times about the waning billable hour, U. Calgary legal ethics professor Alice Woolley wrote “Demise of the billable hour again?” (Feb. 2, 2009).  In that post, she points to the kinds of issues we’ve been talking about at length.  Using larger words than our Prof. Yabut, Prof. Woolley says (emphasis added):

“I wonder about the fixation with the billable hour as a measure of lawyer’s value.  While it has its obvious drawbacks, all billing methods are susceptible to the extraction of rents given the imperfections in the market for legal services.  Moreover, lawyers moved to the billable hour for good reasons (more efficient allocation of risk) as well as more dubious ones (accounting firm indications that this would correct the lag in lawyers’ earnings).  Why isn’t there more critical discussion of this?

Value-pricing pitchman Christopher Marston [Esq] responds to this call for more analysis with his usual blanket condemnation of hourly billing and refusal to admit there are any problems with fixed and value billing.  In a comment, Marston says the profession should just kill the billable hour and “stop talking about it.”  He offers this typical analysis:

“[people like himself] get that there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

In her reply to Marston, Prof. Woolley notes that the history of the shift to hourly billing is unclear.  As to the economics, however, she states:

“[W]hile economists may dispute the merits of time as an economic measure, it is not obvious what measure works given the inherent non-homogeneity of the ‘product’ lawyers sell. If I go to lawyer A for task B, and to lawyer B, for task C, what meaningful measure do I have to compare the ‘price’ charged by two different lawyers – whose skills may vary widely – for two different tasks – the inherent ‘value’ of which may vary widely . . . .”

Then, demonstrating why lawyers have fiduciary duties toward clients, Alice continues:

“Further, if you use measures such as ‘value’ or ‘task’ payment, you still have the problem of information asymmetry, the credence good problem and the issue that, even ex post, it is not always clear whether the value received by a client arose from the skill of the lawyer or other factors – getting a good judge, having a case which even an incompetent fool couldn’t lose (or conversely, having a terrible judge).

In other comments to Prof. Woolley’s post, we are pointed to three recent blawg postings that deal thoughtfully with the hourly billing debate.


February 16, 2009

a preference for congeniality

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 12:53 pm

.. ..  ..  The Jerks vs. the Genial:  Law professor Jeff Harrison started an interesting discussion last week in a posting at MoneyLaw titled “Ready, Set, Punt” (Feb. 10, 2009).  He notes that likablity is a “Pretty crazy way to pick a football team right? The team would lose every game.”  Harrison then asks:

“Is there any reason to think the ‘like’ factor is different for law faculty success. At least in football there will be an objective measure of success and an opportunity to cut players. In law school hiring there are no measures and the initial hiring decisions are for lifetime jobs.”

Prof. Harrison concludes by opining that likability “sounds like a great approach if you are deciding who you want to go down to the bar with after school for a drink — which sadly may be the standard by which much hiring is done. It’s a disaster for the stakeholders of a law school.”

In response, Gabriella Montelle wrote “They Like Me, They Like Me Not” (February 12, 2009) at her On Hiring weblog on the Chronicles of Higher Education website.  She invited readers to answer two questions:

“Is likability a reasonable consideration in hiring, firing, and tenure decisions or do some committees place too great an emphasis on it? How does it factor into hiring decisions in your department?”

Montelle’s piece attracted a variety of responses, and one Comment by a “humanities doctoral candidate” [“HDC”] impressed Louisville U. law dean Jim Chen so much, he turned it into a separate posting at MoneyLaw called “You like me” (Feb. 13, 2009). [Chen’s “Rocket man” post over the weekend about the remarkably valuable yet unselfish play of NBA player Shane Battier may also be related, as part of his ongoing talent versus character debate. via Simple Justice].  Commentor HDC’s insights included saying:

“The really good scholars are self-confident, and that confidence allows them to treat everyone else with respect and kindness. They are excited about ideas, and they are willing to share. Most of all, they are willing to collaborate — they are the ones organizing symposia, inviting guest speakers, cultivating graduate students, and just generally creating the kind of atmosphere where good work flourishes and everyone benefits.

Meanwhile, Jeff Harrison wrote “But will you love me tomorrow” (Feb. 13, 2009) in answer to Dean Chen, saying that in the faculty context likability or “niceness” is the code for “are you someone with whom I will be socially and politically comfortable.” He insists that “Nice in a faculty meeting is only slightly connected to morality, selflessness, or charity.”  Going back to the football analogy, Harrison concludes:

“If personal social and political comfort are critical in determining who gets an offer to join your faculty, it’s like a team thinking more about getting drunk together than winning games.”

An anonymous commentor then told Prof. Harrison that the football analogy was not as apt for a faculty as a comparison to a baseball team.  Using Barry Bonds as an example, he states:

“In other words, superstars are worthless if they create a bad vibe in the clubhouse. . . . but the point is, good scholars who aren’t good colleagues are not worth having around, and whatever is ‘good’ about their scholarship will be worthless if they aren’t the sort of person who can get along with colleagues, train students, and just generally make their work environment a pleasant place to be.”

In my experience, HDC and the anonymous commentor have it right.  As Jim Harrison suggests, faculty should not be trying to hire or promote only persons who fit within their personal socio-ideological comfort zone.  But, they would do well to look for colleagues who match brilliance with unselfishness and congeniality — or, to be more precise, a person who is “genial” in the sense suggested in Merriam-Webster’s definition:

3 a: favorable to growth or comfort . . . b: marked by or diffusing sympathy or friendliness
4: displaying or marked by genius

Naturally (this being the cranky old f/k/a Gang speaking), we do not mean “nice” like the smiley-faced gladhanders with gold stars for every student and colleague.  Nor do we mean “nice” in Harrison’s sense of “just like me,”  as sameness is boring and intellectual quicksand.  Law school faculties need bright minds willing to challenge individuals and institutions, and debate issues of law and policy — but, there is no reason to accept less than respect for eachother and agreeable disagreement. [You need, of course, to respect colleagues and students enough to ask hard questions and expect rigorous thinking.]

Law faculty jobs are far too desirable and desired for us to believe that faculty or students have to put up with jerks and selfish manipulators in order to assure brilliance in scholarship or in the classroom.   Because there are more than enough more-than-capable candidates, there should be a preference for the genial over the jerkish.  That preference may in fact turn out to be a wonderful tool for behavior modification.

In his posting 2007 “talent versus character,” Jim Chen notes how often others have been enablers, willing to justify the odious conduct of a faculty member by saying “He’s a smart guy. Brilliant, even.” That echoed my assertion that same year that:

[H]aving a high IQ is never an excuse for having a low EQ; it’s a reason to demand that our leaders (and our kids) demonstrate and nurture a robust “Emotional Intelligence.”

Daniel Goleman introduced most of us to the notion of EQ, in his 1996 bestseller Emotional Intelligence: Why It Can Matter More Than IQ. (well-reviewed here; click for a quick recap of the “Four Components of Emotional Intelligence“) . . . I’m still amazed at how many otherwise-sensible people are willing to overlook or excuse the emotional immaturity and ineptness of a colleague, friend or family member (and the harm it causes other people), if the low-EQ is attached to a significantly high IQ — and, especially, if accompanied by a large bank account or a powerful position. I think having a high IQ makes the failure to appreciate, nurture and develop ones EQ rather inexcusable.

It was two years ago this week that we wrote about Robert I Sutton’s then-new book “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” (Warner Business Books, 2007, and an identically-titled article in American Lawyer/ (Feb. 20, 2007).  The article explains:

“According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole. (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.) These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others. Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people. The latter, he argues, must go [from the workplace].”

A$$holes surely do not belong in law offices (even though many clients think they want such characters to champion their causes).  They’re even less appropriate in legal academia — especially, when their nasty little show is turned on “impressionable” law students, the very people paying their salaries.

Sutton’s book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website. Search and tenure committees might want to ask themselves how their candidates might fare if they took ARSE and answered honestly.

At her Chronicles of Higher Education weblog, Ms. Mentor advised last week that “They’re Out to Get Me: No matter how good you are at your work, your colleagues won’t keep you if they don’t like you” (Feb. 10, 2009).  She says this advice is especially important in perilous times like now, when jobs that once seemed secure seem quite shaky; and she asks whether “your colleagues already avoid you as a sour, combative personality — someone who’ll waste department energy on vendettas?”.  I’d like to think that law schools would insist on basic geniality from each of their faculty members in good times, too.  In the long run, their “stakeholders” deserve both brilliance and high EQ from every law professor.  There are far too many willing candidates to settle for any less.

p.s. Blawging with EQ: If you have a preference for thoroughness and straight-talk, and also wonder who’s been writing good material at lawyer weblogs, check out Mark Bennett’s Blawg Review #199, at his Defending People blawg.

We can’t promise you consistently high EQ here at f/k/a, but we’ll try our best.  What we do promise is consistently high-quality haiku.  For example, here’s another installment in our project presenting poems from past issues of Modern Haiku.  They’re written by poets who later became members of our f/k/a Honored Guest family. Here are more from Modern Haiku Vol. XXVIII: 1 (Winter-Spring 1997), which have not appeared before here at f/k/a:

almost 200 years of air–
in the room
George Washington died

…. by Gary Hotham – Modern Haiku Vol. XXVIII: 1


On the boardwalk
a blind man listens to the sea
finding its way back

… by George Swede – Modern Haiku Vol. XXVIII: 1

water splashing down–
the warmth of the sun
on my eyelids

little waterfall–
they come to see
why we’re not speaking

pushing in walnuts
with my heel–
autumn rain

… by Lee GurgaModern Haiku Vol. XXVIII: 1

fall rains
the spring
of mushrooms

tail tucked,
a collie skirts
the bungee jumpers

lunar eclipse
my son

.. by John StevensonModern Haiku Vol. XXVIII: 1

moonless night
the darkness deepest
where the snowy owl was

… by Yu Chang – Modern Haiku Vol. XXVIII: 1

February 5, 2009

GAL’s alternative universe

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 1:57 pm

..  We hope it hasn’t been too noticeable in the quality and quantity of our posting, but the f/k/a Gang has had a resurgence of Chronic Fatigue Syndrome symptoms the past month or so.  To get better, your Editor needs to be less active physically and mentally, and especially to avoid stress.  Unfortunately, last week at his Greatest American Lawyer weblog “GAL” Enrico Schaefer — who is well-known as an advocate of alternative billing methods, including Value Billing — decided to put up a lengthy posting titled “In Response to David Giacalone’s Concerns about the Ethics of Value Billing” (January 26, 2009).  Even worse than merely disagreeing with me, the post is chock-full of mischaracterizations of my positions on value billing and alternative fees — presenting them as an array of “strawmen” targets that are easy to shoot down because they twist my arguments into absurdity. Most aggravating, entering an “alternative universe,” GAL depicts me as a defender of the legal status quo.  Despite my wanting to avoid controversy, a reply is surely called for. . . .

. . . Nonetheless, as I told Enrico in an email last week, it takes far too much energy and creates much too much stress and agita, to respond point-by-point to a flood of distortions.  Enrico offered to let me do a podcast interview in reply, but it is a poor medium in which to make less-than-simplistic arguments.  Instead, I decided to write a more general “apologia” that explains my basic position and tries to clarify where I’m coming from as an advocate for the consumer of legal services and reformer of the legal profession.

As I wrote to Enrico: “My fight — and it should be yours, too — is with the people who have taken the term ‘value billing’ and sold it to lawyers as a way to make premium fees higher than could be made doing the same work under the same conditions with hourly billing.”  To see what I have actually said about Value Pricing and Value Billing, start with my recent “value pricing by lawyers raises many ethical red flags” and follow the links.

Below the fold [click more], you will find the comment I tried to leave this afternoon at the GAL post.  For some reason, a message that the webserver “cannot accept the data” came up, but I’m fairly sure that Enrico will make it available there soon.

Responding to GAL’s mischaracterizations has reminded me to post a few more poems from the newest addition to the Red Moon Press best-haiku anthology series, white lies: Red Moon Anthology 2008 — which we introduced here.

cold morning
the saw’s song changes
in the heartwood

persimmon still hanging the extra day of the year

heat lightning and the dry burn of whiskey

……… by Jim Kacian – white lies: RMA 2008
“cold morning” – Haiku Poets of North California 2007 Contest
“persimmon” – Betty Drevniok Haiku Contest 2008 (Haiku Canada)
“heat lightning” – Frogpond XXXI:1

scattering cabbage whites
years later
I still think of her

…. by paul m – white lies: RMA 2008
orig. pub. – Modern Haiku 39:2

55th spring
the cardiologist inserts
a new balloon

… by ed markowski – white lies: RMA 2008
orig. pub.- Shiki Kukai (March 2008)

hard rain
a river rediscovers
the old ways

…. by Matt Morden – white lies: RMA 2008
orig. pub. – Presence 35

. . . Here’s the Comment that I tried to leave today at the GAL post


January 27, 2009

dead flowers and other messages

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 11:08 pm

..  Modern Haiku XXVII:1 (1996; cover by John R. Reynolds)

Last weekend, I brought home a box with back issues of the Modern Haiku journal, borrowed from my friend Yu ChangModern Haiku is not available online, except for a few sample poems from each issue that appear at its website. My plan was to start culling haiku and senryu written by our f/k/a Honored Guest Poets from the pages of Modern Haiku and share them here at f/k/a.

The first Honored Guest poem that I found as I opened the oldest volume in the box yesterday morning was this senryu by John Stevenson:

not dead roses
she corrects me
. . . dried

.. by John Stevenson – Modern Haiku XXVII:1 (1996

As always happens, I was soon distracted by an email and then a link on the f/k/a statistics page.  The next thing I knew, I was at Sui Generis, where blawger Niki Black pointed me to a posting at Stephen Bergstein’s Wait a Second! weblog. It was titled “Bouquet of dead flowers is free speech, not illegal death threat” (Jan. 21, 2009).  With simple serendipity, a posting theme was born.

After numerous additional, time-consuming distractions, I finally spent a couple hours at the end of yesterday afternoon putting together a “dead flowers” piece.  At about 6 PM, I moved my cursor to click “Publish,” but missed the button by an inch, and instead hit “Delete post.”  It was gone.  Gone.  And I was far too irked (at myself) and dispirited to start again last night.

a happy little horror 
the headless

…. by David G. Lanoue – Dewdrop World (2005; free download)

A full day later, I’m dragging out the dead flowers again, oblivious to any message my webserver might have been sending yesterday.

fresh grave
the bare earth covered
with cut flowers

… by Tom Painting  – The Heron’s Nest (Aug. 2003)

newspaper roll –
crushed crocuses just below
the headlines

… by Yu Chang – Frogpond 31:2 (Spring/Summer 2008)

At his civil rights weblog, Stephen Bergstein tells us why Mama Holley was being crass, not criminal, when she left dead flowers for the Orange County probation department:

“The case is Holley v. County of Orange, [S.D.N.Y.,] 06 Civ. 3984, decided on January 14. (The case is not yet reported). The plaintiff is a 69 year-old mother who was upset when the local court revoked her son’s probation and the probation officer laughed while leaving the courtroom.  So mom walked into the probation office undetected and left dead flowers on the receptionist’s desk with a message for the probation department reading, ‘Thinking of you, your ‘HELP’ will be long remembered.’ . . . Plaintiff’s follow-up email to a probation supervisor stated that she was sick and tired of the way that office had humiliated her family.  She also said the bouquet was ‘serving notice’ and that the ‘gift spoke for itself’.”

Apparently, the probation folk were very scared by the flowers and notes and, as Stephen explains, “Holley was arrested for menacing, which makes it illegal to intentionally place another person in imminent fear of physical injury or death.”  However, the federal trial judge looked at the situation and concluded Holley’s arrest violated the Fourth Amendment, because there was no probable cause that the flowers placed the “victims” in imminent fear of injury or death. In addition, while Holley’s gesture was “crude” and “offensive,” her arrest also violated her First Amendment right to free speech, because there was no “true threat” of violence. Instead, the court held that:

“[The bouquet and card] were neither unequivocal nor unconditional insofar as plaintiff expressed her dismay with the Department of Probation and asked for an apology.”

Moreover (and surely to Walter’s dismay), Ms. Holley is entitled to have a jury determine any damages caused by the denial of her civil rights.  Stephen concludes that “some criminal prosecutions are really First Amendment violations in disguise” and “irate citizens have the right to express profound dissatisfaction with official decision-making.”

Not unexpectedly, the Holley case reminded lawyer Bergstein of “a Rolling Stones classic from 1971” that he hadn’t heard in years.  It’s “Dead Flowers,” of course, which we discussed at f/k/a in 2005, after first reading John Stevenson’s “dead roses” poem, in his book Some of the Silence.  Indeed, we invited anyone sittin’ back in a rose pink Cadillac,

“to mail the f/k/a gang some dead flowers.  There’s no need to wait for a wedding or funeral.”

.. The Rolling Stones sang “Dead Flowers” on their 1971 Sticky Fingers album. [Click for the lyrics, and also for a 1972 performance by the Rolling Stones found on YouTube.]  Before he headed north in 1980 to NYC and  Cleary Gottlieb, my friend Martin Welling also sang “Dead Flowers” at night spots around Metro D.C. — often at my request.

after her death
composing roses
instead of words

.. by Pamela Miller Ness

Sending dead flowers without a more direct and deadly threat might not amount to menacing, but another cultural icon from the same era as the Stones’ song raises a similar legal issue.  In 1969, when recording began on “Dead Flowers,” Mario Puzo published his novel The Godfather.  In 1972, the movie version of The Godfather gave actor Lenny Montana’s face, voice and hulking presence to the Don’s loyal enforcer Luca Brasi, and gave us the immortal line “Luca Brasi dorme coi pesci.” Which leaves us with a question we can’t refuse to ask:

.. What about sending dead fish? Judging from this YouTube clip from The Godfather, young don Sonny Corleone was rather upset by that package with Luca Brasi’s vest wrapped around dead fish.  It’s clear message was that hit-man Brasi “sleeps with the fishes,” and it didn’t come from a 69-year-old miffed mother.  Please discuss among yourselves whether New York’s criminal menacing statute should have applied when Sonny got those unflappable fish.  We hope Scott Greenfield will share his vast criminal defense experience and NYC savvy to help answer this question.

first date–
the little pile
of anchovies

.…… by Roberta Beary – from The Unworn Necklace (Snapshots Press, 2007); Frogpond (Winter 2007), 1st Place, Haiku Society of America’s 2006 Gerald Brady Senryu Contest

first-date daisies
she never mentions
they’re wilting

.. by dagosan [Aug. 6, 2005]

No, I haven’t totally forgotten Modern Haiku XXVII:1 (1996).  It has a full bouquet of poetry from the f/k/a haijin family, and I’ll get back to them soon.  Until then, here are another pair in keeping with our floral theme.

in the rain
from the car to the house —
wide open chrysanthemums

… by Gary Hotham – Modern Haiku XXVII:1 (1996

a mist at dawn
moonflowers’ fragrance

…. by Peggy Willis Lyles – Modern Haiku XXVII:1 (1996

Flowers: once they’re picked, they’re all dead.

January 23, 2009

preemption sinks Rockland County sex offender residency law

Filed under: lawyer news or ethics — David Giacalone @ 11:59 pm

update (Jan. 26, 2009): Click for the decision in Peo. v. Oberlander. (via Kathy Manley)

afterwords (Feb. 20, 2009) See our post on Peo. v. James Blair, in which an Albany City Court judge follows the Oberlander precedent.  follow-up (March 27, 2010): The Schenectady County sex offender residency law was voided yesterday by State Supreme Court Justice Barry Kramer, who held that the law was pre-empted by New York State laws covering restrictions on where sex offenders may live. See “Sex offender law tossed out” (Albany Times Union, March 27, 2010).  The case was brought pro bono by the Albany law firm of [Terence] Kindlon Shanks & Associates, which has successfully challenged similar laws in Albany, Resselaer and Washington Counties.  Attorney Kathy Manley handled the Schenectady County case for the Kindlon law firm.

We’ve been lax covering sex offender residency news since our marathon posting in 2007.  I’m pleased to report tonight, however, that Supreme Court Justice William Kelly struck down the Rockland County sex offender residency law, in a decision released today. Peo. v. Oberlander (Jan. 22, 2009) It is the first case in New York decided on the basis that the State has pre-empted the field, leaving no room for a county or other government unit to impose further restrictions.  See “State judge throws out Rockland’s housing law for sex offenders” (The Journal News, Jan. 23, 2009; via David Hess,

According to The Journal News

“Justice William Kelly, in an eight-page decision, found that state has specifically taken the responsibility for sex offenders.

“Kelly also wrote the state law specifically empowers local probation officers to decide where sex offenders can live without any borders. He also cited a similar decision banning residency boundaries in New Jersey by a judge in the Garden State.”

Attorney David Goldstein represented the defendant in the case of People v. Yoel Oblerlander, which charged a Violation of Probation based on the defendant’s having  “moved to a residence within 1,000 feet of a ‘Rockland County pedophile-free child safety zone’ in violation of Local Law No. 1 of 2007.”     Under the Rockland County law, sex offenders were prohibited from living, working, and loitering within 1,000 feet of schools, day care centers, libraries or any facilities. Goldstein told the Journal News that Rockland’s 1,000 feet restriction, or any boundary, is arbitrary and meaningless as far as protecting the public.

“The state law of letting probation officers use their discretion is more effective,” Goldstein said. “The county law was an over-reaction with a nebulous 1,000-foot magical line.”

There are 80 similar laws across the state that could be affected if challenged under the preemption doctrine. (See our prior post from October 2007, discussing a lawsuit challenging the Albany County sex offender law under preemption doctrine).

Rules passed by counties and towns often cause ripple effects. Ulster County is currently considering its own sex offender residence restrictions, after a sex offender moved there from Rockland County (see, Sex Offender Issues weblog, Jan. 15, 2009).  Ulster County Legislator Glenn Noonan told the The Daily Freeman that:

“I’m trying to get Ulster County on board with several other counties who have passed similar legislation. Then it forces the (state) Assembly to get off their butts and do something about this on a state level.”

More thoughtful minds will hopefully remind our state leaders that our current State laws and policy work well, and that there is no reason to believe banning offenders from particular zones protects our children. (see, e.g., our post “Sunday papers question sex offender laws“)

update (Jan. 28, 2009):  At his Sex Crimes weblog, Prof. Corey Rayburn Yung points out that “As was the case in New Jersey [G.H. v. Township of Galloway, 401 N.J. Super. 392 (App. Div. 2008)], the state could cure the conflict by either expressly allowing localties to implement residency restrictions or by adopting a statewide residency restriction law.”

update (Feb. 2, 2009): State Senate Majority Leader Malcolm A. Smith has already proposed a bill — S.1300 — that would impose 1000-foot no-residence “safety zones” around schools, parks, day care centers.  See our post “don’t let a bad idea go statewide” (Feb. 2, 2009).

January 16, 2009

making wind farms eco-friendly neighbors

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 8:42 pm

.. Wind power is a popular and growing source of “green” and clean energy.  Back in the summer, we wrote about New York Attorney General Andrew Cuomo trying to assure that the process of getting wind-turbine “farms” approved by towns and villages is also clean — free of conflicts of interests, dirty tricks, and anticompetitive practices.  See this post on the launching of a statewide investigation, and this one on a voluntary Code of Conduct.

Lawyer Arthur J. Giacalone (who finally has a small website) is my brother (as well as my haiga collaborator). Due to the nature of his law practice, I’ve been more aware than many proponents of Green Energy that large industrial-scale “wind farms” are often not good neighbors. Art’s zoning-development law practice has long focused on helping residents protect their quality of life, property values and community character.  More and more over the past decade, homeowners have come to him deeply concerned over proposed wind farms in their towns, villages and rural communities. Arthur has been working hard on their behalf — with some wins and some losses — to help assure that law makers and public officials use their planning and development powers to require large-scale wind farms to be eco-friendly neighbors.  As Art says at his website:

. . . Art Giacalone  . . .

They may be touted as “green and clean,” but inappropriate siting of industrial-scale wind turbines can adversely impact the health of nearby residents (“wind turbine syndrome”), the community’s rural character, and the value of properties within the towers’ viewshed.

Last week, Art had a well-deserved victory in the case of Hamlin Preservation Group v. Town Board of the Town of Hamlin (NYS Sup. Ct. for Monroe County; Index No. 2008/11217).  In a decision dated January 5, 2009, the Hon. David Michael Barry “set aside and annulled” The Wind Energy Law adopted in April 2008 by the Monroe County Town of Hamlin.  Judge Barry said that the Town Board violated the requirements of the State Environmental Quality Review Act (SEQRA) when it neither took a “hard look” at the relevant areas of environmental concern, nor set forth a “reasoned elaboration” for its determination that the wind energy law would not have a significant impact on the environment.  See “Hamlin wind power decision blown down in court” (Rochester Democrat & Chronicle, Janl 12, 2009).

The facts are instructive. As Art explained in a press release last weekend:

The wind law nullified by the court would have allowed construction of 400-foot- tall wind turbines within 600 feet of property lines and public roads and 1,200 feet of residences.  In adopting the local law, the Hamlin Town Board chose to ignore the recommendations of the town’s Wind Tower Committee for 1,500-foot setbacks from roads and property lines, and 2,640-foot [half-mile] setbacks from residents.  The Town Board also disregarded the WTC’s recommended noise standards intended to protect the health and wellbeing of nearby residents.

The Board had argued (rather lamely, methinks) that it didn’t have to explain its conclusion that there would be no environmental impact, because its legislation only imposed restrictions and did not actually allow any specific project.

As my brother knows, I’ve always been a bit worried about the NIMBY phenomenom.  With all its open space and wind potential, I believe it should be possible for New York to play an important part in achieving our national goal of developing green energy and moving toward energy independence, while helping with needed economic development.  But, I’m also convinced (again, because of all that space) that large-scale wind production can and should be done in a way that minimizes or eliminates environmental damage to the surrounding communities — and thereby eliminates opposition from reasonable people acting in good faith.  Art is right when he argues:

“If a town chooses to allow, rather than prohibit, industrial-scale wind development, it must, at a minimum,  protect its residents’ health, maintain the town’s rural character, and preserve property values by  establishing meaningful setback requirements and noise standards.”

According to the Rochester Democrat & Chronicle, Hamlin Town officials want to move quickly to put a new law on the books. (See “Hamlin to consider new wind power laws,” Jan. 13, 2009)  Let’s hope this time they listen to their own Wind Tower Committee and other experts who have come up with workable standards to make windfarms good (if a bit standoffish) neighbors.

For more on these issues, see:

p.s. Just a little bit of haiku on a frigid winter night:

withering wind…
the scarecrow’s jacket

… by ed markowski

the narrow place
between my neck and my collar
November wind

. . . by DeVar Dahl – A Piece of Egg Shell, Snapshot Press Haiku Calendar 2003

sudden blast of wind –
borrowing the snowman’s
hat and gloves


January 13, 2009

olfactory justice

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:39 pm

The Judge Nose Best: Can a judge dismiss an unsworn juror because “her strong body odor was negatively affecting the other jurors”?  Massachusetts Superior Court Judge Nancy Staffier-Holtz thought she could, but defendant Rakeen Young objected, arguing that the juror was of his race.  Noting that she indeed noticed the smell out in the lobby, Judge Staffier-Holtz stated:

“[G]iven the strength of the body odor, I’m satisfied that the other jurors would be put at a distinct disadvantage in their efforts to concentrate.”

When Young contested the point on appeal, the Massachusetts Appeals Court agreed with the trial court judge.  In Commonwealth vs. Rakeem Young (Dkt. 07-P-146, Jan. 9, 2009), the Appeals Court explained that the trial judge had the right to dismiss a juror “in the best interests of justice.”

“We hold that the judge’s dismissal of the juror was not an abuse of her discretion. Here, the jury had not yet been sworn, and therefore, the judge had no duty to hold a hearing or find an extreme hardship. See G. L. c. 234A, § 39. The judge made sufficient findings on the record regarding her concern that the juror’s body odor would affect the ability of the other jurors to concentrate. Accordingly, the defendant’s claim fails.”

As Bob Ambrogi said at Legal Blog Watch yesterday, “The moral of the case: Justice may be blind, but it retains a healthy sense of smell.” (“The Case of the Stinky Juror,” Jan. 12, 2009)

That’s more than enough punditry for me today.  Thanks goodness, Master Issa will help by putting in his two scents:

at the edge
of a stinking well…
plum blossoms

smelling like sake
smelling like piss

on honorable Buddha’s 
honorable nose
an icicle

… by Kobayashi Issa, translated by David G. Lanoue

Had enough of the odious olfactory theme?  Four years ago today, we introduced our readers to the pleasantly aromatic haiku professor-publisher-poet Randy Brooks, with these poems:

hands on the rail . . .
the humpback whale
doesn’t resurface

funeral procession . . .
snowflakes blowing
into the headlights

two lines in the water . . .
not a word between
father and son

grandpa drags his daybed 
to the front porch. . .
mockingbird’s songs

missing in action
she dusts off his guitar
returns it to the shelf

… by Randy Brooks – from World Haiku Review, Vintage Haiku of Randy Brooks

January 9, 2009

when a perp pleads “not guilty” it isn’t a lie

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 12:54 pm

“To American lawyers, a twenty-year-old document is ‘ancient,’ while a seventeen-year-old person is an ‘infant.’ at one time or another, the law has define ‘dead person’ to include nuns; ‘daughter’ to include son, and ‘cow’ to include horse; it has even declared white to be black.”

…. from “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman (Henry Holt and Co., 2007)

There are a lot of words and terms that lawyers use differently than the rest of humanity.  Besides the ones mentioned in the above quote by Adam Freedman, consider: brief, charge, count, party, practice, person, try and real.  Most non-lawyers take these differences in stride and accept the shift in meaning within the legal system or profession.

Nevertheless, there are large numbers of people (including one or two of my aunts) who believe there’s something wrong when a “perp” (the perpetrator who has in fact done the acts charged in an indictment) pleads “not guilty” at his or her arraignment.  They consider a perp’s plea of Not Guilty to be dishonest — a lie — and therefore immoral or unethical (or, for the less judgmental, an unacceptable waste of public resources).  Faced with the following multiple-choice question at his or her arraignment:

How do you plead to the charge?

  • guilty
  • not guilty
  • no contest

these fans of the inquisitional system of justice (where you are forced to answer every question, and to do so truthfully) insist that a perp should admit guilt and face the appropriate punishment.  If the defendant’s lawyer really believes he has a valid legal defense or justification for the seemingly criminal behavior, some of the Inquisitors might permit the defendant to say “not guilty.”  Otherwise, if he in fact did the deeds that amount to the alleged crime, they want him to plead “Guilty.”  It apparently doesn’t matter that in our accusatory system of justice

  • the defendant is “presumed innocent” until the State proves his guilt beyond a reasonable doubt.
  • the judge has just told the defendant he has three important Constitutional rights: 1) the privilege against self-incrimination; 2) the right to a trial by jury; and 3) the right to confront his accusers;
  • the judge will enter the plea of “not guilty” for him, if he fails to respond with one of the allowed answers; and
  • to everybody officially involved at court (judge, prosecutor, defense attorney) the term “not guilty” has a far broader meaning than “I didn’t do it”

A few criminal lawyers with weblogs have been discussing this topic at their weblogs the past couple of weeks, starting with Jeremey Richey (ECILCrime, “Is It Ethical to Plead Not Guilty?,” Dec. 20, 2009) and Mark Bennett (defending people, “Justice vs. Fairness,” Dec. 22, 2009), and spreading to Ken Lammers (CrimLaw, “morality and immorality of ‘not guilty’,”Jan. 4, 2009) and Scott Greenfield (“The Two Most Loaded Words in a Courtroom,” Simple Justice, Jan. 5, 2009, where there is even a discussion in the Comment section about the merits of possible substitute phrases).

Mark Bennett has a nice, pithy explanation of the cause of the confusion:

In The World, “not guilty” means “didn’t do it.” Not so in the criminal justice system, where it means, “the government hasn’t proven it.”

  • Jeremy Richey insists “It is perfectly ethical [honest] for a person to plead not guilty even if the person believes himself to be guilty as sin,” because he is merely doing what all the players in the judicial system expect him to do — “requiring the government to carry its burden.”  Therefore, “when a person enters a not-guilty plea, he is not being deceptive or dishonest.”
  • Ken Lammers says it might be immoral for the defendant to refuse to take responsibility for his criminal behavior, but “Quite simply, the trial system doesn’t care. It is set up to test the government’s ability to prove guilt – not to judge the defendant’s morality. The stains on the souls of those in the dock are between them and God, not them and the court.”
  • Scott Greenfield opines that “the vast majority [of defendants] fall within a relatively gray area of morality, where they possess a rationale for their actions that may fail to comport with what most people would consider moral choices but which is not so far outside the box as to render them evil.  Wrong, perhaps.  Stupid often.  But not quite evil.”  As for the Not Guilty Plea:

“These words are not a moral statement, but a legal one, encompassing the plethora of issues and challenges inherent in the criminal justice system.  To utter them in response to ‘how do you plea’ in the courtroom is never to be immoral, for morality plays no role in the proceedings.”

Because some blawgers and commentors were mocking those who confuse the everyday definition of “not guilty” with the legal or judicial meaning of those words, I piped in at Simple Justice that lawyers ought to be educating not ridiculing the public on this topic, and indeed has had centuries to do so.   The legal profession should, concisely and using Plain English, explain the Not-Guilty Plea’s meaning and justification in our criminal justice system, especially its relationship to the privilege against self-incrimination.  Then, we should use our public relations savvy and access to all sorts of media to get the word out — maybe even inserted into episodes of Law and Order or CSI — that:

  1. “Not guilty” doesn’t just mean “didn’t do it” in our judicial system. It also means “I’ve got some good defenses,” “I’m presumed innocent,” “you gotta prove it, dudes,” or “I want a trial”
  2. “Not Guilty” is the only answer available to a perp who isn’t willing to give up the important privilege against self-incrimination and the status of being “presumed innocent.” For him or her, it’s the best answer out of the three choices available at the arraignment.  Even if more “accurate” or “truthful” pleas were available, such as “did it, but you have to prove it” or “did it, but it was justified,” they would be a form of self-incrimination.
  3. Allowing a perp to preserve his or her 5th Amendment right against self-incrimination by making a Not-Guilty Plea serves two valuable and interrelated interests: The preservation of an accusatorial system of criminal justice and the preservation of personal privacy from unwarranted governmental intrusion.  Our 4th and 5th Amendment rights would be far less meaningful, if they were available only to the “innocent.”

[For more on the history and justification of the right against self-incrimination, with cites and links to relevant case law, see “Fifth Amendment Rights of Persons: Self-Incrimination,” from the Congressional Research Service Annotated Constitution.]

Let’s hope we don’t have to wait a couple more centuries for the legal profession to come up with informative explanations of the Not Guilty Plea (this Meida Manual by the Boulder County Bar Association doesn’t come close).  Given their expertise, the f/k/a gang thinks the Criminal Law Bar — prosecutors, professors, and public or private defenders — should take the lead.  Considering how many of them blog and tweet their days away, they surely seem to have enough spare time for the project.  We hope that some fragments of this post will be of assistance, and offer this opening, to get the ball rolling:

Why Isn’t the Perp’s “Not Guilty” Plea a Lie? The ability to make a Not-Guilty Plea is central to our criminal justice system, which is accusatory not inquisitional.  That is . . .

. . . . .

Finally, as is our habit here at f/k/a after long pieces of punditry, we offer some short pieces of poetry.

lonely road
a policeman listens
as i recite the alphabet

… by ed markowski

lightning flash–
only the dog’s face
is innocent

night fishing–
the pleading
of a katydid

accusing the pine
of foolishness…
evening mist

in and out
of prison they go…
baby sparrows

… by Kobayashi Issa, translated by David G. Lanoue

January 4, 2009

cardinal sins from Charon and Zevon

Filed under: lawyer news or ethics,q.s. quickies — David Giacalone @ 7:27 pm

As regular readers know, the f/k/a Gang considers Thematic Excess to be among the deadliest of sins when it comes to hosting the weekly Blawg Review carnival.  So, we were duly scandalized this evening seeing the content of Blawg Review #193, which appears at Charon QC‘s eponymous weblog.   The fictitious Charon teaches law in the U.K., and has decided to pen Blawg Review #193 in the guise of The Lord of Misrule (whoever that is), presenting his selection of the best recent posting from law-related weblogs in a prolix list formulated around the Seven Deadly Sins.

In the spirit of the New Year, however, we’ve decided not to chastise Charon excessively.  Three things helped us turn to mercy rather than mud-slinging:

  • Buried in the Avaritia-Greed category, we discovered this plum:

“Perhaps this would have been better in the Lust category… but David Giacalone of f/k/a had a sparklingly Savage year in 2008.”

. . . thanks, Charon.

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If you’re not familiar with the polka-beat song (which Prof. Yabut can often be heard mangling in the shower), here are a few representative stanzas:

from “Mr. Bad Example
(Warren Zevon & Jorge Calderon)

I’m very well acquainted with the seven deadly sins
I keep a busy schedule trying to fit them in
I’m proud to be a glutton, and I don’t have time for sloth
I’m greedy, and I’m angry, and I don’t care who I cross

Of course I went to law school and took a law degree
And counseled all my clients to plead insanity
Then worked in hair replacement, swindling the bald
Where very few are chosen, and fewer still are called

I’m Mr. Bad Example, intruder in the dirt
I like to have a good time, and I don’t care who gets hurt
I’m Mr. Bad Example, take a look at me
I’ll live to be a hundred and go down in infamy

  • Finally, Charon’s recital of his own vices and peccadillos has convinced us he’s unlikely to be affected in the least by our opinion of his (confessedly award-winning) style.

So, you’re off the hook this time, Charon.  But, please, a little more discretion — and a lot less theme — next year.

no good deeds
but also no sins…
winter seclusion

caged bird–
watching the butterfly
with envy

… by Kobayashi Issa, translated by David G. Lanoue

p.s. Speaking of Greed, Anger, Pride and other such vices, the launching of LexTweet by the folks at LexBlog [see Legal Blog Watch, Jan. 2, 2009] seems to explain why Kevin O’Keefe slammed me so hard when I refused to jump on the Twitter bandwagon, and made a grudging apoplogy that was so meaningless.

let’s not overlook the death of Melissa Batten

Filed under: lawyer news or ethics — David Giacalone @ 2:25 pm

. . . Melissa “Missy” Brooks Batten (1972 – 2008) . . .

It was no surprise to find Harvard Law School graduate Barack Obama [HLS ’91] on the cover of the current issue of the Harvard Law Bulletin, when it arrived last month.  I was surprised, however, while belatedly thumbing through the Bulletin on New Year’s Day, to read about Melissa Batten, a 1997 HLS graduate.  Melissa wasn’t featured because she left her job as a public defender in 2002 to become a successful video game developer for Microsoft. Instead, her story is briefly sketched in the following In Memoriam item:

Melissa C. “Missy” Brooks Batten ’97 of Renton, Wash., died July 29, 2008. She was a developer in Microsoft’s games division in Seattle. Prior to moving to Washington, she was a public defender at the Mecklenburg County Public Defender’s Office in North Carolina, where she handled hundreds of cases and worked in the domestic violence court. On July 21, Batten filed an emergency temporary protection order against her husband. Eight days later, he killed her before killing himself. Donations in Batten’s memory can be made to the Eastside Domestic Violence Program in the Seattle area:

That’s right: A former assistant public defender who specialized in domestic violence cases was shot to death by her estranged spouse a week after obtaining an order of protection. I winced when I first read Melissa’s memorial blurb, feeling both the loss and the irony of her violent death.

Then, as a blogger, I thought: “Why haven’t I heard about her death in the blawgisphere?”  Since my failure to get around to any but a tiny number of other weblogs is virtually legendary, I thought the fault might be mine and Melissa might have indeed received coverage on law-related websites.  Searching this morning, however, I found quite a few posts at gamer blogs (see, e.g., here and there), but only one on a “blawg” about Melissa’s death: Skelly’s pointer at Arbitrary and Capricious to a Dagblog post by the anonymous Articleman, who I have since discovered is a Chicago lawyer and Harvard Law graduate.  Articleman‘s post [“The Murder of Melissa Batten: Please Give and Help Prevent Domestic Violence,” Dec. 21, 2008] is a thoughtful essay well worth your time (and extracted below).

The legal community needs to mourn and remember Melissa, and this post is our small effort to that end.  For news reports of her gunshot murder by her husband Joseph Batten, see this Seattle Times article; an emotion-filled SeattlePI column, and a post at with Fast Facts about Melissa.  As Dagblog recounts, “On July 29, he confronted her in the parking lot of the Redmond apartments where she had moved, and took her life with eight shots from a 9 mm handgun, before dispatching himself with one.”  Like Articleman, I think it is especially important to note that:

  • Melissa Batten spent a significant part of her legal career helping the disadvantaged, rather than cashing in on her prestigious law degree.  Seattle PI columnist Robert Jamieson, Jr. wrote:

“Batten left a blue chip private firm in Charlotte to work for the poor and disenfranchised at the defender’s office.  . . .

” ‘A great lawyer, a zealous advocate for justice,’ Kevin Tully, chief public defender for Mecklenburg County, told me. ‘Just an enjoyable person’.”

  • She left law to pursue her creative muse and apparently did the job with enthusiasm and success.
  • Domestic violence doesn’t just happen to the poor and uneducated, it “happens in all kinds of families and relationships. Persons of any class, culture, religion, sexual orientation, marital status, age, and sex can be victims or perpetrators of domestic violence.” (see for more information, and statistics on DV, from the ABA Commission on Domestic Violence, which offers training and brings together resources for lawyers who work in the field)

Articleman offered many insights and sentiments in his piece that I’d like to think I might have said, with a bit more time and effort.  But, I’ll borrow some of his well-phrased words:

“You can hear platitudinous journalistic tongue-clucking that the victim was a domestic violence lawyer whose knowledge couldn’t save her, who put her faith in a piece of paper that couldn’t save her.  I’m sure that Missy Batten was a very, very smart woman who knew that she was acutely at risk, and knew that brains and paper weren’t a cure-all.  The most important general wisdom I saw in the many articles about her death was this:  ‘a special shelter may be the only way to keep a woman…safe.  Unfortunately, because of funding issues, there are more people in danger than there are safe places to house them.’

“I wrote recently about the importance of bearing witness to suffering around us, especially in this holiday season, especially if we’re ok.  Barack Obama’s election was personal to me, in part because of my pride in having attended his school, and my agreement with his values.  Missy Batten’s death is likewise meaningful to me:  she tried to do good, and tried to create, two deeply important things.

“There are many, many people in danger of domestic violence, and not enough money, or lawyers, or paper, or jails, on the side of keeping them safe.  . . .  Giving to the EDVP, we can do those two things, things that we talked about so much in Campaign 2008.  I hope you choose to give too.”

The death of any young person is always sad. It seems especially sad when the person is talented, likable, and highly educated.  With young lawyers, an early death tends to be due to an illness (far too often breast cancer) or an auto accident, as opposed to murder.  We certainly don’t often think about domestic violence reaching our profession, but when it does it should motivate all of us to work harder to help prevent domestic violence throughout our society, and to protect its potential and actual victims, through better procedures and education.  I hope Melissa’s death will move more lawyers to assist that cause with their time and money.

. . Click to see Melissa’s video for the newest Banjo-Kazooie game ..

thin winter coat
so little protection
against her boyfriend

. . . . . . by John Stevenson – Quiet Enough (2004)

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