f/k/a archives . . . real opinions & real haiku

Blame it on this nearly week-long flu virus of mine, if you must. While the blawg world is abuzz with discussion of Sunday’s Boston Globe article “Beat the clock: A Boston law firm says no to billing by the hour, and its clients say they are pleased” (October 8, 2007), I’d really rather be thinking about pumpkin haiku than hourly billing. (In truth, a nice long nap or two would be my preferred activity this afternoon).

pumpkin patch –
this one is big enough
for my son

………………… by Yu Chang, from Upstate Dim Sum (2005/1)

The Globe article focused on the Shepherd Law Group, as did a swarm of posting that is collected by Jay Shepherd himself at his Gruntled Employees weblog (via LegalBlog Watch; ABA Journal news). Jay says “Our up-front pricing places our interests squarely aligned with our clients’ interests, which makes them happy and forces us to be more efficient.” And the “Amen, Hourly Billing is the Devil’s Spawn” chorus is at it again. Thankfully, Carolyn Elefant again tries to focus on the most important issue: What do clients want and how do we best serve their interests? After noting that even value-billing guru Ron Baker stresses that “It’s up to law firms, not their customers, to make this change. It simply won’t happen any other way,” Carolyn asks:

“If value billing benefits clients, then why do we lawyers need to sell them on it? Have clients become so entrenched in the billable-hour concept that they don’t realize that there’s a better way? Or is value billing another way for firms to charge more for the kind of value that as lawyers we’re obligated to provide anyway?”

I’m going to Plead the Fifth (day with the flu), and refuse to deal at length with this topic at this point in time. [For some depth, and lots of links, on the issue of hourly billing — and the ethics and practicalities of alternatives (and even what makes Ron Baker tick) — see my August 18th post on broadening the hourly billing debate.] Instead, I will point out a few important ideas for the law firm or law client to keep in mind, when thinking about the pros and cons of hourly billing and alternatives such as flat fee or value billing:

1. Billing by the hour does raise the issue of law firms doing too much (being inefficient) because they earn more by doing more, but pricing in advance through a flat fee inherently creates the potential of doing too little for the client, since more effort won’t earn more money and less effort won’t (immediately, at least) reduce the size of a bill.
2. A too-busy lawyer or law firm (and the best almost always are too busy) has no particular incentive to do unnecessary work for a client when billing by the hour; but, a too busy lawyer has plenty of incentive to do less for a client when a fee is fixed in advance.
3. When an hourly-billing lawyer does extra (“too much” or perhaps “unnecessary”) work for a client, the result is often a better-written pleading or contract, or a better understanding of precedent; when a flat-fee-billing lawyer does “too little” (cutting corners or eliminating tasks), the result is very likely to be lower quality work product and possible injury to the client’s interests.
4. As always, it is important to distinguish condemnation of high billable hour quotas for each attorney, which are set by law firms, and which raise many ethical red flags, from billing by the hour, which is not inherently unethical. And,
5. What might be good or fair for savvy clients, who have lots of experience with lawyers and legal problems and offer the potential for significant repeat business, may not be automatically fair for clients who have little relevant experience and, therefore, may have no real idea how much work is required, what a reasonable fee would be, how difficult or unusual their situation is, nor how qualified a law firm is to handle the matter. In many situations, they also won’t be better able to judge the quality or value of the services even when they are completed.

a giggling coven–
stunted pumpkins
left in the patch

………………………………… paul m. (3rd place, Shiki Kukai, Nov. 1997)

Before jumping with both feet on the Flat Fee (or Flat Earth) Bandwagon, clients and lawyers need to remember the roots of the practice of hourly billing — which grew out of discontent with a system largely built upon flat fees and “eyeballed” billing [see, e.g., The Hours, Niki Kuckes, Legal Affairs, Sept-Oct. 2002]. Also, remember that most lawyers will construct a flat fee by estimating how many hours of attorney time a client or a project is likely to require — and making sure the law firm is not being shortchanged by the guestimate. (Thus, Jay Shepard says “his fees for unlimited legal advice range from $1,000 to $30,000 a year, depending on a client’s legal needs.”) It comes down to trust between the client and the lawyer — and, most clients will want to be able to “trust but verify.” How will you verify that you are getting your money’s worth?

One tip: If a flat-fee or value-billing lawyer, who wants to be hired by you, is only telling you the good things about alternatives to hourly billing, and only the bad things about paying by the hour, you should think long and hard about whether you are dealing with a trustworthy lawyer who puts your interests first. If he or she won’t give you an estimate of how much actual lawyer time will be put into your matter, run.

One more tip: If you want to see more pumpkin haiku, click here.

afterthought (10 PM, Oct. 10):  I’ve often thought that the Amen Chorus Against the Billable Hour is a great example of a few people with a financial incentive artfully stoking an inbred dislike for a particular topic or phenomenon into a wrongheaded Any-Change-Must-Be-Good movement.  That notion kept poking its way into my psyche the past two days, after seeing John Tierney’s Findings article yesterday, in the New York Times, “Diet and Fat: A Severe Case of Mistaken Consensus” (New York Times, October 9, 2007).  Tierney raises the important concept of the Informational or Reputational Cascade, and just how easily “large groups of people can reach a ‘consensus’ without most of them really understanding the issue: Once a critical mass of people starts a trend, the rest make the rational decision to go along because they figure the trend-setters can’t all be wrong.”  The primary culprit is turning acceptance of a notion into a binary choice — for it or against it — with no room for nuanced partial acceptance.

See his follow-up Tierney Lab weblog posts on the Low-Fat Diet Cascade (Oct. 9, 2007); and on Schopenhauer on Cascades (Oct. 10, 2007).  And, for more information, go to Informational Cascades and Rational Herding: An Annotated Bibliography and Resource Reference (by Sushil Bikhchandani, David Hirshleifer, Ivo Welch, who wrote the seminal paper on informational cascades).

The economics, ethics and practicalities of billing for lawyer services should never be seen as yes-or-no propositions.  Far too much depends on the factual circumstances and on the traits of the people involved (lawyer and client).  By constantly attacking and deriding anyone who points out that there are pros and cons to every billing method, those with a stake in killing the billable hour are trying to create a forced binary choice — one that is likely to hurt those with the least power in the marketplace for legal services: the unsophisticated (or un-wealthy) client and the inexperienced and easily-replaced young attorney.

pumpkins rumble
in a passing pick-up…
october sunset

……………

pumpkin field
i look back on the face
of a summer love

………………………… .by ed markowski

This Wednesday (October 10, 2007), the eyes of America’s “sex offender stakeholder community” will be turned to the Ohio Supreme Court, when it hears oral argument in the case of Francis Hyle, Green Township Law Director, et al. v. Gerry R. Porter, Jr. (Case No. 2006-2187, pleadings and orders). The Porter case, on appeal from the 1st District Court of Appeals in Cincinnati (Hyle v. Porter, 170 Ohio App.3d 710, 2006-Ohio-5454), will decide whether Ohio’s residency restrictions on sex offenders can be applied to a felon whose crime occurred prior to the law‘s effective date in 2003. (via Sentencing Law and Policy, Oct. 7, 2007; and Cleveland Law Library Weblog) Five weeks ago, in Mikaloff v. Walsh, a federal district court blocked retroactive application of that very statute (see our prior post).

As reported in today’s Columbus Dispatch:

“Cincinnati sex offender Gerry R. Porter Jr. . . . was forced to move from the home that he has owned since 1991 because it is 983 feet from St. Jude Elementary School. He, his wife and two sons moved into a rented apartment in October 2005. Someone burned down the house they owned on Easter Sunday of 2006 (no one has been charged), and they plan to rebuild and move back if permitted.

“Porter committed his crimes at his home before the law took effect.”

The article’s title captures the situation quite well: “Sex-offender ghettos: Get-tough laws force predators to move but do little to make kids safer” (Oct. 7, 2007). The lengthy and informative piece in the Sunday Dispatch supplies details and arguments similar to those you’ve seen in a series of posts here at f/k/a, since last June, when we started voicing opposition to the sex offender residency restrictions passed by the “PanderPols” who make up the Schenectady County [NY] Legislature. [See, e.g., our discussion of NYCLU’s position, and the links collected at the foot of the our original post.]

The beetle I righted
flies straight into
a cobweb

…………………………….. by George Swede – Almost Unseen (2000)

The Ohio high court will be settling a split within the state’s lower appellate courts on the retroactivity issue. [See Nasal v. Dover, 2006-Ohio-5584 (Court of Appeals for Miami County, Oct. 20, 2006), which would not enforce the law.] According to Porter’s lawyer, David A. Singleton, executive director of the Ohio Justice and Policy Center, it “is a landmark case, however it turns out.” In its decision requiring Porter to move, the 1st District Court of Appeals blithely brushed aside his constitutional claims, stating in Hyle v. Porter:

• “We hold that the rule is not so penal in effect as to eviscerate the legislature’s nonpunitive purpose and that it therefore does not violate the constitutional prohibition against ex post facto laws.” And
• “This case does not concern a total divestiture of Porter’s property rights. As we have already said, the rule prohibits an offender from residing within 1,000 feet of a school. But it does not prohibit an offender from owning, renting, or leasing property within the 1,000-foot zone. Thus the rule is remedial and does not offend Ohio’s constitutional prohibition against retroactive laws.”

We believe that the courts that have ruled against retroactivity have the better argument. And, Porter has received support from a broad array of friends of the court. The amicus brief submitted by the Rosenthal Institute for Justice at the University of Cincinnati College of Law, along with the Iowa County Attorneys Association, Iowa Coalition Against Sexual Assault, Iowa State Sheriffs & Deputies Associaton, and the Jacob Wetterling Foundation, has the following Conclusion:

“Residence restrictions do not decrease the risk of recidivism among sex offenders, nor do they promote the safety of the children of Ohio. Such restrictions undermine public safety goals by isolating offenders from their support networks and their treatment providers. They have the collateral effect of limiting offenders’ access to housing and secure property rights. In addition, such restrictions create a false sense of security by suggesting that recidivism can be reduced by limiting an offender’s residential proximity to his/her potential victims, despite the fact that studies of such recidivists indicate no correlation exists between residential proximity and risk of re-offense. In fact, such restrictions in at least one state have been shown to reduce the ability of law enforcement officials to track sexual offenders. Finally, such restrictions place an undue burden on law enforcement agents and prosecutors by requiring enforcement of laws which fail to meet their articulated policy goals.

“Each of the amici that join this brief seeks to reduce and prevent sexual crimes against children. While we applaud the goals of the Ohio legislature in seeking to address this issue, we also recognize that the issue of sexual harm is complex and is unlikely to be remedied by laws which are overly restrictive and attempt to remedy the problein with little consideration to the continuum of offenders who commit this type of crime. We urge this Court to strike down this law which does nothing to protect the children of Ohio and instead merely leeches away valuable resources.”

As Jill S. Levenson, a professor at Lynn University in Boca Raton, Fla., told the Columbus Dispatch: “Rather than impose blanket restrictions, it’s better to identify sex offenders by risk level, appropriately restrict them on a case-by-case basis and provide more treatment and supervision.”

smoking out mosquitoes–
soon the fireflies
are gone too
…………………….. by Kobayashi Issa, translated by David G. Lanoue

It’s sad that, despite excellent exposition in many local newspapers (see this post, that one, and that, for example), so many politicians have ignored the problems created by such residency restrictions. Let’s hope the Ohio Supreme Court gives a strong, clear message to law-makers in every state who continue to support or propose residency restrictions as a solution to the sex offender problem — and who need a bit of judicial cover before they do the right thing. f/k/a will continue to follow this important issue.

the nightingale
resigned to his fate…
voice in a cage

a wife, a child…
foretelling my fate?
blossoms scatter too

……………………………………… by Kobayashi Issa, translated by David G. Lanoue

A lawsuit was filed yesterday by the well-respected Albany, NY, lawyers Terry Kindlon and Kathy Manley, of Kindlon Shanks & Associates, challenging the sex offender residency restrictions imposed by Albany County — which prohibits Level 2 and Level 3 sex offenders from living within 1000 feet of schools and child care facilities. The plaintiff, who is seeking to file as an anonymous “John Doe”, is a Level 3 sex offender, who has had one sex offense (against a 14-year-old girl) 22 years ago, and has numerous special health care needs. He was contacted by Albany police and told he had one week to move from his current residence. Click for a combined 36-page pdf file of the Complaint & Affirmation (or Word versions of the Complaint and the Affirmation) in John Doe v. Albany County (Supreme Court for Albany, County, NY, filed Sept. 27, 2007).

update (Sept. 29, 2007): The Schenectady Gazette quotes attorney Kindlon that the Albany County Legislature created an “irrational situation and was not equipped or authorized to create a law like this.” NYCLU’s Melanie Trimble notes the case will “set a local precedent, even though the court is deciding for Albany County,” and adds “We need to protect those individuals who face serious adversity with these residency restrictions.”   “Suit challenges sex offender law: Lawyer, NYCLU hoping to set precedent,” B1, Sept. 29, 2007, reprinted)

Here is how Kathy Manley described the facts earlier this week, in an informal email on September 25th:

… He is a Level 3 but has only ever been convicted of one sex offense (against a 14 year old girl) and his crime was 22 years ago. He has a lot of health problems and needs a phone line (so he can call in his blood pressure reading everyday) and a refrigerator (to keep his insulin – he has to give himself injections 3 times a day.)

He was living in Albany for 4 1/2 years with no problems when his building was sold and everyone was evicted last May. He’s on parole for 3 more years from his 1985 conviction and his old parole officer found him an apartment, where he’s been since May. But last month the police told him he had to leave by next week. . . . This man has given the police over 30 different addresses to check and they have told him that every one of them is in the excluded zone. They told him to try a couple areas of the city where there is no housing available to him. So he has been trying to do everything right, but has run out of options.

If they put him in a motel he probably won’t have the fridge and telephone he needs for his medical conditions. We tried to work it out with the DA’s Office but I was told today that no exceptions would be made.

Along with f/k/a‘s Editor, Kindlon and Manley had signed the New York Civil Liberties Union’s letter to Schenectady County in August, opposing that County’s tougher restrictions. (See our prior post.) The NYCLU letter stressed that the residency restrictions were unlawful as punitive ex post facto laws, and because the field has been preempted by state law and policy. Terry Kindlon expects to be in Albany County Supreme Court on Tuesday, October 2, seeking a preliminary injuction and Temporary Restraining Order.

autumn wind —
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta

eviction notice —
a moth ricochets
in the lampshade

. ……………. by Alice Frampton — The Heron’s Nest (March 2004)

autumn evening —
yellow leaves cover
the plot reserved for me

Stillness of sand
in the hourglass bottom–
the sound of wind

Autumn cold; curtained window
of the fortuneteller
softly glowing

…………………… by Rebecca Lilly
“Autumn evening” — Shadwell Hills; Modern Haiku XXX:2, and A New Resonance 2
“Stillness of sand” – Acorn #18 (2007)
“autumn cold” – Shadwell Hills (Birch Prees Press, 2002)

• update (Sept. 27, 2007): Nobody in the blawgisphere covers spanking by the bench and bar like David Lat at Above the Law. Today, he continues his coverage of the Spanking Judge, Herman Thomas of Mobile County, Alabama, including links to a couple of songs about the good judge — “Hand me the Paddle” and “Spank Me” — by former paralegal Jolene Roxbury. Judge Thomas is alleged to have “periodically removed prisoners from Mobile County Metro Jail and spanked them in a room at the courthouse.” You can get the details from Lat, with links to Mainstream Media sources.
  • blue heron
    all paddles
    at rest
  • autumn colors
    we paddle closer
    to the mountain

  ……………………………………………………….. by Yu Chang . .
  “blue heron” – Shiki Haikusphere 10th Anniversary Anthology (2007)
  “autumn colors” – Frogpond (Winter 2007)

Is the Ex-Spanker-Ex-Priest Fit to be a Lawyer? Way back in 2004, ethicalEsq spent some time wondering about the possible effects of bankruptcy and substance abuse on a law student’s admission to the Bar, and got spanked by some testy and touchy recent law grads. ( See this post, where I coined the aphorism “sometimes, silence isn’t golden, it’s yellow“). A decision by the Iowa Supreme Court last week (via Mike Frisch at the Legal Profession Blog), raised a different issue concerning the character/fitness requirement for becoming a lawyer:

Does conduct that took place 17 years or more ago, on trips with teen-agers, such as “[bare-bottom] spankings, tickling, push-ups and sit-ups as disciplinary techniques” (and finagling neck and foot massages out of teen-agers under his supervision), which might be considered child sexual abuse today, and resulted in the expulsion from the Catholic priesthood many years later, but not criminal conviction, disqualify the bar applicant from taking the bar exam on the basis of inappropriate character? In Iowa (with similar requirements in all states), “Those who apply for admission to the bar must demonstrate their honesty, integrity, and trustworthiness. . . . because attorneys are put in a position of considerable influence over their clients, whose trust in them must remain inviolate.”

Iowa’s Bar Examiners concluded that the abuses of parishioners’ trust “were so serious that Nash remains unfit to practice law notwithstanding his completion of a treatment program, his many subsequent years of appropriate priest-parishioner trust relationships, and his apology to those harmed by his earlier actions.”

In the Matter of MICHAEL PATRICK NASH, (Supt. Ct. Iowa, No. 102 / 07-0286, September 21, 2007; 51-page decision, pdf., including a dissent) Mr Nash was granted permission to take the State bar examination, after the Court disagreed with the State Board of Bar Examiners, and concluded that Nash had “satisfied his burden to demonstrate his good moral character and fitness to practice law.” The Court stated:

“While we certainly do not condone Nash’s disciplinary techniques, we do not believe such non-criminal acts from seventeen (or more) years ago reflect poorly on his present moral character and fitness to practice law. Nash utilized the techniques when he was a relatively young and inexperienced priest dealing with misbehaving teenagers in remote logging camps of southeast Alaska in the 1980s. While those methods of discipline would certainly be considered inappropriate by today’s standards, when viewed in the social and historical context in which they were applied, they appear significantly less sinister.”

Mr. Nash has consistently denied that there was any sexual context to the discipline or massages (admittedly, it is difficult for me to find that assertion credible). However, he did admit that such conduct might indeed be deemed child sexual abuse in 2007. Based on that fact, and failure to submit to extensive observation and evaluation, one justice dissented.

me in one hand
a belt in the other
dad sings a lullaby

…………………….. by roberta beary -from Taboo Haiku –

I’m not sure how I would have voted. For the past few months (starting here), I’ve been writing about sex offender residency restrictions. Very few people want a sex offender living next door (or even a thousand feet away), even when the crime happened many years ago and the offender has led an admirable life ever since. I imagine that many members of the public would also shy away from hiring a lawyer who was an ex-priest defrocked for kinky discipline procedures with adolescents — but that really isn’t the proper test. Although I am strongly against imposing residency restrictions on sex offenders, I do believe that violations of professional trust in a law graduate’s past need to be given close scrutiny. Here is more of the Iowa Supreme Court’s reasoning in its Nash decision:

“We believe Nash’s conduct over the past seventeen years is the best indicator of his present moral character and fitness to practice law. While passage of time between an act of misconduct and submission of an application for admission to the bar alone will usually not be sufficient evidence of present good moral character, see In re King, 136 P.3d 878, 885 (Ariz. 2006), we are convinced Nash came to understand certain disciplinary techniques crossed appropriate pastoral boundaries. Following his treatment experience, Nash voluntarily avoided one-on-one interactions with parish children to avoid the appearance of impropriety. In 2006, as soon as the Catholic Church allowed him to speak with anyone involved in its investigation, Nash issued a written apology to the children whom he had improperly disciplined. He has earned and maintained the support, admiration, and trust of nearly eighty individuals who testified and wrote letters supporting his admission to the bar.”

The priest-parishioner relationship, especially with children, is certainly even more “sacred” than the lawyer-client relationship. Violations committed while a priest are quite telling when asking whether a person can be trusted to properly treat and protect a client. On the other hand, 17 years of good conduct and respected positions certainly do mean something. I’d like to hear your thoughts, and any additional questions or procedures you would require Mr. Nash to face prior to being granted admission to the Bar.

Another case handled the same day by the Iowa Supreme Court was a lot easier. In Disciplinary Board v. Blazek ( No. 107 / 07-0507, September 21, 2007), Michael Blazek had been convicted of: (1) attempted enticement of a minor for sex, (2) traveling in interstate commerce to engage in sex with a minor, (3) receipt of visual depictions of minors engaging in sexually explicit conduct, and (4) possession of visual depictions of minors engaging in sexually explicit conduct. He clearly deserved to be disbarred. What surprised me was learning that Blazek had pled guilty in 1997 to “a felony charge of knowingly engaging in sexual contact with a child under twelve.” That incident “stemmed from a family reunion on a cruise ship where Blazek sexually assaulted his eleven-year-old nephew by fondling the boy’s bare buttocks and genitals.” Remarkably, in 1997, the Court had merely “suspended Blazek’s law license indefinitely with no possibility of reinstatement for two years.” Thirty months later, he was allowed to resume practicing law. They sure were a lot more lenient in Iowa than I would have been with the first-time sex offender Blazek.

A Movie, Not Just a Joke: “A Lawyer Walks Into a Bar . . . “ I haven’t yet seen the documentary “A Lawyer Walks Into a Bar . . . “, but I want to, after hearing about it from the likes of weblawyer Robert Ambrogi [at both his Lawsites weblog (Sept. 21, 2007) and LegalBlogWatch (Feb. 22, 2007)] and the anonymously-omnipresent Blawg Review Editor. Bob told us over the weekend that A Lawyer Walks Into A Bar, which is directed by Eric Chaikin (who gave us the entertaining 2005 film “Word Wars – Tiles and Tribulations on the Scrabble Game Circuit“) is now available on dvd (e.g., at Amazon.com). Here’s a summary of the New York Times review:

Writer-director Eric Chaikin’s feature-length documentary A Lawyer Walks Into A Bar. . . offers a witty, seriocomic look at myriad aspects of the American legal process and judicial system. It hones in on six individuals, all prospective attorneys at the time of the film’s production, and follows them through trials and travails as they approach and take the formidable bar. Chaikin then uses the subjects’ stories as springboards to broader digressions on U.S. litigation. The film features a myriad of celebrity guest appearances, from both well-respected attorneys and entertainers. Participants include: attorneys Alan Dershowitz, Mark Lanier and Joe Jamail; comics Eddie Griffin and Michael Ian Black; TV commentators John Stossel and Nancy Grace, and many others.

Click for the trailer and select clips, a synopsis of the film, a glimpse of the six bar applicants, and the related weblog. I’d like to see non-lawyer Chaikin’s perspective on the legal system, lawyers and the bar examination process. And, whether out of empathy or schadenfreude, I’m curious about the exam travails of the six main characters (four of whom are women). It’s been 31 years since I took the District of Columbia bar exam and was waiting for the results. Despite telling myself that I’d never be in the bottom 40 percent of any group taking any test, it was a stress-inducing process. On the other hand, I expect the experience of watching A Lawyer Walks Into A Bar to be enjoyable and cathartic. Naturally, I’ll tell you its grade after I see it. And, I’m going to ask my public library to purchase a few copies.

Like atheists in fox holes, a lot of rather non-religious law students seem to turn to the heavens for assistance when taking the bar exam. Although I’m not a believer in divine intervention (for baseball batters, Emmy nominees, or test takers), I tried to help the prayer-inclined back in 2005, with my post “wanted a law school exam prayer.” You might want to check it out (no guarantee of results, of course).

today
even the pigeon
says a prayer

……………… by Kobayashi Issa, translated by David G. Lanoue

silent prayer–
the quiet humming
of the ceiling fan

…………………….. by Lee Gurga – – Fresh Scent

long winter –
prayer bundles sway
in the cedars
…………………….. by Billie Wilson

Speaking of Spanking (and silly geese, but not bar admissions): Yesterday’s Overlawyered.com Roundup (Sept. 25, 2007) pointed to the farmer who filed a lawsuit over the use of his picture, with a goose, on an irreverent greetings card. Click to see the cover of the card from Roanoke.com and read the story. The card’s message: “Since it’s your birthday, you decide — Would you rather get spanked . . . [inside the card] or goosed.”

According ot the Roanoke Times, “In Virginia, using an image for advertising or trade requires a signed release.” The issue is whether poultry farmer Andrew Marsinko gave permission for the taking and use of the photo, which was snapped at the 1996 State Fair of Virginia, by Washington, D.C., photographer John Burwell, who had been hired to take promotional photos for the fair. Marsinko is seeking $7.5 million in damages from Burwell and the companies that used the image. [Walter Olsen has collected other links to lawsuits brought by unwilling photographees, here.]

I have no legal insights into Marsinko’s case or the policy issues. Nonetheless, I’ve been rather goose-silly lately over at the MagnaPoets Japanese Form group weblog. See there and here for poems, and here for the prose-with-poem haibun “bad for the gander.” Here are just a few of the resulting haiku:

the power boat’s wake —
a pair of ducks
gets goosed

holidaytrafficjam
– goslings goose gander
glide under the bridge

honking out my window –
geese above
cabbie below

…………………………… by david giacalone, a/k/a dagosan

When you go around doing a lot of assuming, your mental baggage will sometimes impede the journey down the road toward enlightenment.  So, even opinionated pundits (and crusty curmudgeons) need to travel with eyes and mind open. Fueled with copious amounts of caffeine, my eyes were sufficiently open this Monday morning to discover an important truth: despite assumptions and experience that might suggest otherwise, not every theme-oriented edition of Blawg Review is “annoying, strained and distracting.”

Exhibit A is “Blawg Review #127” at the Deliberations weblog (Sept. 24, 2007), where trial lawyer and jury maven Anne Reed offers her “list of 17 Best Tips For Voir Dire, as inspired and illustrated by some terrific law bloggers.” Anne’s first jury selection rule: “Assume Nothing.”

A brief stop at Blawg Review #127 will yield not only a quick review of notions important in choosing a jury (or trying to understand and persuade any group of people), but some great tips on interesting, recent law-related weblog materials. For example:

• If, like myself, you had a very difficult time figuring out the actual facts behind the “Jena Six” story, check out the “long, multi-sourced posts” at Patterico’s Pontifications (from a libertarian) at TalkLeft (from a liberal)
• If you think you have your assumptions under control when thinking about generational differences, see Stephanie West Allen discussion of Generation Y at idealawg, and find out some questions you might want to be asking yourself.

• If you want to renew your respect for the jury system, or just learn about a commemorative stamp that is neither too cloying nor too obscure to use on your holiday mailings this year, see Eric Turkewitz’s post about the new Jury Duty 41-cent stamp (buy it here).

tagging along
with an ice cream cone
the senior partner

……………………………….. by barry george

Here are Deliberations top rules on jury selection. At Blawg Review #127, each of them is accompanied by a pointer to a worthwhile recent weblawg posting. Here, some of them are accompanied by a haiku or senryu by recovering (perhaps soon relapsing) lawyer, Barry George.

1. Assume nothing

long deposition–
the lawyer’s
“at the risk of repeating myself”

2. Look for leaders . . .

choppy river —
bursts of the coxswain’s orders
on the wind

……………….…… by Barry George – The Heron’s Nest Vol. IX: 3 (September 2007).

3. . . . and dissenters

4. Watch for points of view

retired Reds scout –
still eyeing the field
through dark glasses

………………………………… by Barry George – Mayfly #23;

5. Look for skills

my nephew’s fastball –
I hand back his glove
and keep the sting

………………………………… by Barry George – bottle rockets #11

6. Notice how they process information

Making change
the conductor
shifts his toothpick

……………………………… by Barry George – the loose thread: RMA 2001;
Modern Haiku XXXII:1

7. Know what generational differences mean, and don’t

ocean sundown–
a child jumping up
for one last look

………… by Barry George – Tinywords.com (Sept. 12, 2007)

8. Pay attention to the quiet ones

9. Remember they have lives

the late glare
of a summer sidewalk —
winos pool their change

….. barry george – The Heron’s Nest VIII:4 (Dec. 2006)

10. Not all jurors are like you

cats at twilight–
I am the magician
filling their bowls

…………………………. by barry george – Simply Haiku

11. Some just want to get back to work

spelling test
the teacher’s
squeaky shoes

……………….. by Barry George from A New Resonance 2; Frogpond XXIII:3

12. Learn the publicity, whether it’s national . . .

extended drought
the wake of a goose
drifts toward shore

………………………… by Barry George – The Heron’s Nest (Oct. 2002)
.

13. . . . or local

14. They want the big picture

wind chimes
sharper, clearer
after snow

…………………………… barry george — the heron’s nest VI: 6 (June 2002)

15. If you’re lucky, you’ll have a juror artist

watercolors
strung across the art room–
winter rain

……………………. by Barry George – simply haiku (Oct. 2003)

16. Make a good impression

the accused teen
and his lawyer…
dressed for spring

……………………….. by barry george

17. Remember the majesty

pink begonias
deepening
the grey fall

…………………….. by barry george – Simply Haiku

Many thanks to Anne Reed for including our post on the Saiban-in jury system that is coming to Japan in Blawg Review #127, and for her generous words about this weblog, under Rule 15: “If you’re lucky, you’ll have a juror artist.” Anne is the curator of The American Gallery of Juror Art (“art done by actual jurors while on actual jury duty”), and I’m sure she would appreciate any samples you might want to bring to her attention. In closing, I’m still not ready to give up my preference for non-themed editions of Blawg Review (dissent, Susan Cartier Liebel). One rule that Anne almost certainly subscribes to is “lawyer know thyself.” Just as some lawyers shouldn’t try to be stand-up comedians or great orators in front of juries, some lawyer webloggers need to do a reality check before they introduce themselves to the weblogging world through the prism of a theme-based Blawg Review. Anne has the skill and panache to pull it off. But not every lawyer (or, please, law professor) does.

“To this day, we value harmony,” she said, and, referring to a haiku by Basho, Japan’s greatest poet, she added, “In Japan, to not speak is considered a virtue.” …… Fusako Kimura, 73, quoted in New York Times, “Japan Learns Dreaded Task of Jury Duty” (July 16, 2007).

noisy reed thrush–
the big river flows
in silence

how quiet
the light blue morning-glory…
such good manners

losing the contest
I discover
the lord’s mum won
……………………………………….. by Kobayshi Issa, translated by David G. Lanoue

Milwaukee trial lawyer Anne Reed will be hosting Blawg Review #127 on Monday, September 24, 2007, at her juries and jury trial weblog called Deliberations. In my pre-Blawg-Review stop at Deliberations today, I discovered a fascinating topic that should interest f/k/a readers, whether they care about legal systems or Japanese culture: “Juries In A Quiet Land: ‘Saiban-In’ Comes To Japan” (Deliberations, September 20, 2007). [And see, Rough justice in Japan, BBC radio broadcast (September 2007; via Foley Square weblog] As they explain at the Japan Juries and Democracy Program webpage of the University of Montana’s Mansfield Center:

“Japan is in the middle of a dramatic reform of its judicial system that would have appealed to the democratic instincts of Mike Mansfield. In 2001, the Japanese Diet enacted the Saiban-In law (“Lay Assessors Act“), which takes effect in [May] 2009. This law creates a new quasi-jury system in Japan whereby persons charged with major crimes will have both their guilt and sentence determined by a judicial panel composed of three professional judges and six lay persons, rather than by professional judges alone. Japan had a classic jury system briefly in the pre-war period, but the return to citizen participation in the judicial process is a big break with the past and signifies a bold commitment to promote democracy.”

A recent New York Times article gives further details, noting that “In the new system, judges and jurors, with one vote each, will decide cases by a simple majority. Jurors can ask questions in the courtroom, and through their numbers can effectively overrule the judges. Even though all three judges may rule that a defendant is guilty in a case, a not-guilty ruling by at least five of the jurors will prevail. The only exception involves a guilty ruling: even if all six jurors vote guilty, the ruling will not stand unless at least one of the three judges shares that verdict.” This sounds like a major breakthrough for citizen participation in the judicial system, but the Times voices a concern that is also heard throughout Japan:

“But for it to work, the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority.

“To win over a skeptical public, Japan’s courts have held some 500 mock trials across the country. . . . Still, polls show that 80 percent are dreading the change and do not want to serve as jurors, a reluctance that was on display among the mock jurors here.”

“. . . . ‘There is no denying that great submissiveness is part of the national character,’ Judge [Tomonao Onizawa, who is the councilor general at the Supreme Court] said. But, he added, ‘I think this will change gradually.’

“But opponents say that change is unlikely because the judges will overwhelm the jurors. Many favor an American-style jury system, which would separate argument-averse Japanese from the judges.”

Japan’s Ministry of Justice has launched a major campaign to educate the public, including pamphlets, slick advertisements,

and even movies.

having a jumping contest
a night burglar
a cuckoo

locked in a staring contest
me…
and a frog

soon enough
the man-killing man too…
just dew on the grass

in hell’s mirror
the plum-blossom thief’s
reflection

mother cat
steals for her kittens…
run faster!

………………… by Kobayshi Issa, translate d by David G. Lanoue

For additional information on Saiban-in, see:

• Foley Sqaure, the informative weblog of attorney Robert E. Precht, which focuses on “blogging on Japan’s new jury system called saigan-in.” Precht is associated with the Maureen & Mike Mansfield Center at the University of Montana, and “has been making monthly trips to Japan to talk to lawyers, judges, and citizen groups about the U.S. jury system.”
• The 51-page “JAPAN’S QUASI-JURY (SAIBAN-IN) LAW: AN ANNOTATED TRANSLATION OF THE ACT CONCERNING PARTICIPATION OF LAY ASSESSORS IN CRIMINAL TRIALS,” by
  Kent Anderson and Emma Saint*
• The Japan Juries and Democracy Program of the University of Montana’s Mansfield Center, which “will join with colleagues at the UM School of Law, the Mansfield Foundation, and relevant Japanese organizations – including the Japanese Bar Association – to help prepare Japanese judges, prosecutors, defense lawyers and lay people prepare for this significant transition. The UM units will also join in collaborative research on the potentially far-reaching legal and social changes that ensue.”
• Wikipedia’s entry The Jury in Japan
• The workshop held a year ago today at Cornell Law School, titled “Citizen Participation in East Asian Legal Systems,” sponsored by the Clarke Program in East Asian Law and Culture (September 22-23, 2006), and organized by professor Valerie Hans.

In a recent posting at Foley Square, “Kyoto Bar Association” (September 12, 2007), Precht describes a presentation he made to the Kyoto bar group. In part he noted that:

“Many people think that Japanese citizens won’t speak up in front of the professional judges, but defense lawyers can help educate the lay members of the saiban-in panel and appeal to them directly. Lawyers can ask the citizens to pay attention to particular pieces of evidence, and lawyers can give the citizens clear choices to make in deliberations. If lawyers do that, it will be difficult for the professional judges to tell the citizens to ignore defense arguments. In a very real sense, it is the responsibility of defense lawyers to give citizens opinions and to empower them to express the opinions.” (emphasis added)

In her Deliberations posting this week on Saiban-In, jury expert Anne Reed says “If you think the jury system can be problematic here, imagine starting a jury system from scratch — in a culture known for a level of deference and reticence that would bring most American jury deliberations to a standstill. That’s what they’re trying to do in Japan.” She emphasizes:

“Significant” barely conveys how big this change is. The transition isn’t just from judges to juries; it’s from writing to talk, lawyers to witnesses, authority figures to ordinary people, years to days.

I plead virtually total ignorance of Japanese culture and society. But, I know that many of our Honored Guest Poets and other haiku aficionados who read f/k/a are steeped in Japanese ways and have studied their culture and language, often living there for extended periods. I would love to hear from anyone who — perhaps after spending significant time among citizens of Japan, or even judging haiku or renku contests with Japanese haijin — have insights or opinions to offer on how the jury system is likely to work in that nation. Please use our Comment section or email me with your ideas.

In the meantime, perhaps Master Issa can shed some light on Japanese perspectives on the justice system and attitudes toward authority and social harmony:

used to losing
I’m peaceful, calm…
mum contest

lit by the mosquito-murdering
taper…
my white hair

it’s a man-killing
mushroom, true…
but pretty!

a reed thrush–
chasing the incompetent
thief

filled with shame
flat to the ground…
the thief cat

unaware of the thief’s
eyes, melons
cooling in water

the thief
is just as he is…
hazy moon

the mountain moon
gives the blossom thief
light

even for stealing water
for my rice field…
I take my parasol

in the misty day
no window can be seen…
a prison
……………………………………….. by Kobayshi Issa, translate d by David G. Lanoue