Most succinct Notice of Appeal ever!

No, I'm not resuming this blog but this is too funny not to share.

Courtesy of one of my west coast colleagues comes what may be the most pointedly succinct Notice of Appeal (this is a pdf file) I have ever seen.

What it lacks in legal sufficiency it makes up for in amusing candor. This appeal won't go anywhere but it has certainly brought a smile to the faces of a lot of judges who don't get out much and may do the same for appellate lawyers who often share the sentiment but must make the argument somewhat more professionally.

OK. I'm going back to oblivion now.

A sign that it's time to ride off into the sunset.

This report that Eminem is going to do a wide-screen remake of Have Gun, Will Travel is surely a sign from heaven that it is time for me to bring HOWT to an end.

I started this blog just over one year ago and I did it because I was intrigued by this new medium where you can share your thoughts and opinions with the world and I thought "What the hell. I'll take the plunge and play in the sandbox called the blogosphere for a while."

It has been quite a ride and for a good part of this blog's run, I tried hard to emulate prolific bloggers like Skelly, Ken, Steve and Howard. However, keeping a quality blog (not that this one qualifies as such) is a lot of work and in the last several months, in addition to an increase in my court's caseload, I have put a lot of other extracurricular irons in the fire in the form of collaborating on an appellate practice textbook and agreeing to take on a judicial study committee on the quality of indigent representation and a task force on technology in the judiciary. As a result the frequency of posting and probably also the quality of the posts, have suffered.

For a while now, I have been avoiding facing the reality that I have come to a crossroads where I have to decide whether to allow this blog to languish with just an occasional post like this blog or to just go ahead and end it quickly and for those 30 or so of you from all over the world who make HOWT a daily visit (at least according to my Sitemeter logs), I think I probably owe you a clean break.

So with Eminem waiting in the wings, I think that like Paladin, the western character who was the inspiration for the name of this blog, it is time for me to ride off into the sunset.

The trials and tribulations of selling the family van on UK e-Bay.

This is hilarious. The best part is found in the e-mail recaps below the pictures.

Thanks to Anonymous Law Student and Will Work for Favorable Dicta for the heads-up.

Sound advice for an effective oral argument.

For any of you who are interested in effective appellate advocacy, Steve at Virginia Appellate News & Analysis (you may have to scroll down a little) has a very thoughtful post on the subject of "Effective Oral Argument."

In addition to endorsing everything Steve says, my own two-cents is that the very best (and thus the most potentially effective) oral argument is a discussion between and among legal professionals about the application of one or more fine points of law to a particular factual scenario. Arguments that contain phrases like "I don't think it's fair" or those which make it apparent that the lawyer isn't familiar with all of the cases on point make it very difficult to have any sort of meaningful dialog about whether error was committed by the trial court.

For oral argument to be meaningful, all parties to the discussion (yes, that includes the judges as well) have to be completely conversant with both the facts that provide the context and the applicable and potentially applicable precedents, statutes and rules of procedure. Practice moot court rounds may make the practicioner feel better about his or her level of preparation and if so, it serves a purpose, but anyone who views them as a "dress rehearsal" is making a serious mistake because the judges aren't likely to follow your script.

Just what you need to boil your friends and family alive.

Just add beefstock, vegetables and a missionary or two.

How's this for irony?

Indians worry about their high-tech jobs being outsourced to Vietnam and China.

Happy Birthday to HOWT.

Although the early archives were lost in the HOWT blog implosion of July, 2005, HOWT came into existence on May 31, 2005.

I must admit that I didn't realize it myself until today. I never expected that this adventure would last a whole year and, truth be told, I don't know how much longer I am going to do this, but it certainly has had its moments.

Memorial Day

Memorial Day emerged out of the grim shadows of the American Civil War. Before the close of the war, women began decorating the graves of soldiers who had died in battle in that conflict.

The practice quickly spread and a few years later, May 30, 1868 was designated as "Decoration Day" -A day for placing flowers on the graves of both Union and Confederate soldiers throughout the United States

In 1882, Decoration Day became known as Memorial Day and soldiers who died in other wars were also honored. Over the years, it has become a day when all loved ones who have died in war and peace are remembered. In 1971, the United States Congress declaired Memorial Day to be observed annually on the last Monday of May

On this Memorial Day, I remember my uncle and others who gave their lives for our country, but I also pray for those that continue to serve to keep America free, and especially those who currently stand in harm's way. I hope you will join me.

So you want to be a judge....

In a comment to the post below, Anonymous Law Student asks "What's the typical path to becoming a judge? In school, it seems that we are only drilled for becoming associates somewhere on the horizon."

Before I get any farther into answering ALS' question, I should pause for a disclaimer that no matter the court and no matter the state, the process of becoming a judge is inherently political, at least to some extent. In most states, becoming a judge is simply a matter of winning an election so your political skills are at least as important as your legal ability. I don't intend to sound sarcastic when I say that because professional competence (or lack of it) is always a campaign issue but these days elections are won or lost on sound bites as much as anything else.

In states where judges are appointed by either the governor or the legislature, factors such as ethnic and gender diversity, geography and political affiliation are still important criteria in selection, even when political activism is not. Some states have set up judicial nomination commissions that screen candidates to insure that everyone in the pool from which a judge is ultimately selected by a governor or legislature is professionally competent but even when every candidate is qualified, those factors mentioned above are still considerations.

With that disclaimer out of the way, the short answer is that I don't think that there is a typical "career path" as such to being a judge.

The longer answer is that there are different "career paths" depending on what type of judge you are talking about. For example, you can pretty much forget about being a bankruptcy judge if you haven't focused your practice on bankruptcy law or becoming a family court or juvenile court judge if you know little or nothing about family law or domestic relations. Beyond that, I think that I can safely generalize as follows (although I am sure that there are exceptions out there that help prove these points):

If you are interested in sitting on a trial court bench, you will likely not receive serious consideration unless you have a significant amount of experience as a trial lawyer. By "trial lawyer" in this context I mean someone who knows their way around a courtroom where a jury is sitting in the box and who knows the rules of evidence as well as civil and criminal procedure pretty well. That usually means someone with criminal experience as a prosecutor, public defender or criminal defense attorney and/or someone with civil trial experience as a plaintiff's lawyer, legal aid lawyer or a member of a "litigation" section in a law firm. Because state and local bar associations also often have some measure of influence over the selection or vetting process, being well regarded by your peers doesn't hurt either.

If your goal is to sit on an appellate bench, your "career path" has a few more options. Law professors and lawyers who basically had an "office practice" and rarely set foot inside a courtroom are far more likely to be seriously considered for a seat on an appellate court than they would be for one on a trial court. The judges on most state and federal appellate courts that I am most familiar with, have a mix of backgrounds and my court is probably typical in that respect. Although the majority of the members of my court were trial judges and trial lawyers before that, we also have some former trial lawyers who did not previously serve as trial judges, a couple of former law professors and a couple of "office" lawyers with virtually no trial experience before joining my court. I personally think this sort of a mix is a good thing because of the different perspectives represented in each panel.

If you think you look good in black and want some advice, the best that I can give is to urge you to be the best professional you can be, both with respect to your clients and also with respect to your colleagues and the community. As a judge, you will be held to higher standards and if you demonstrate that you already hold yourself to those standards, you will stand out from the crowd when the opportunity comes along. Then it is just a matter of being in the right place at the right time, in other words, the political lightning has to strike you.

I hope this helps. Good luck.

For judges, how much $ is enough?

As the dust begins to settle from Mike Luttig's departure from the Fourth Circuit to Boeing's corporate suites in Seattle, it was inevitable that the debate about judicial salaries would bubble up again, as Southern Appeal notes here.

My two cents worth is that while it would be very nice to make more money, judicial salaries are not out of line in comparison to other upper level government jobs and are certainly much better than the average earnings of those taxpayers who pay those salaries.

As a state judge, I am not paid even what Judge Luttig walked away from but I doubt many of us do the job for the money. I took a pay cut to go on the bench and I have children at home who will soon be entering college, so money is not unimportant. I know I could easily find a job with a law firm that would quickly solve any potential financial problems. Unlike Mike Luttig, I can also safely say that I will never be on anybody's short list for a seat on the Supreme Court. So why do I stay?

I do what I do for several mundane reasons. First, I really enjoy the intellectual stimulation of wrestling with the finer points of the law. Second, I enjoy writing and I find a lot of satisfaction in crafting an opinion that resolves the legal issues between the parties and provides future guidance to the bench and bar. Finally, there are some great quality of life benefits in that you don't have to worry about clients or billable hours and because the job is 90% reading and 10% writing, you can do it anywhere and anytime. This means that the hours are pretty flexible and as long as you have the discipline to keep up with the work flow, I can go to my kids' sporting events, parent-teacher conferences and all those other things I missed before I went on the bench.

Obviously, if the compensation wasn't enough to support my family's basic needs, I would be doing something else but the nature of upper level government service is some measure of financial sacrifice for the greater good. Besides, and I recognize that I may be in the minority on this point, I don't have a big problem with people leaving government service after a while as long as there are good people available to fill the void and while getting them confirmed, appointed or elected may be another story, it doesn't appear to me that there is a critical shortage of highly competent men and women ready and willing to fill vacancies on state and federal appellate courts.

How about a really cool, envioronmentally friendly tree house.

Here is a concept design for the ultimate treehouse.

Loyal HOWT readers know that I find these oddball habitations kind of interesting.

HT to Gizmodo for the link.

R U There? OBTW, IMHO, need rescue or EOL!

Lost at sea, eating squid and drinking rainwater for 22 days, Aussies text message for help.

From a stretch in the pen to a stretch limo to another stretch in the pen.

You would think an experienced bank robber like this one, would know enough to use a more inconspicuous getaway vehicle than a stretch limosine.

Hat tip to Autoblog.

Thoughts on a 104 page "winning" brief.

Via CrimLaw, I see that Jack Chin over at CrimProf Blog (second paragraph) links to this New Jersey Appellate Division opinion in which a defendant had his conviction overturned and Professor Chin notes "I can't help but notice that the wordy and repetitive brief won."

No doubt about it, he did win but I suspect it was in spite of the 104 page brief his attorney filed and not because of it. In the first place, as the court notes in a footnote, the court "reluctantly" allowed the state to file an even longer 109 page responsive brief (apparently lawyers in New Jersey are paid by the word). Moreover, notwithstanding examples like this one and others noted previously here and here, it doesn't seem to occur to some appellate practitioners that it is called a "brief" for a reason. Appellate judges recognize and appreciate that lawyers must do their best to protect their client's interest on appeal and obviously one way to do that is to do what this lawyer did and throw everything against the wall in the hope that something would stick (which here it did). However, an effective appellate practicioner (one whose wins on appeal don't coincide with the occurrence of a total solar eclipse), will understand that the object of the exercise is the persuasion of an audience. Those who are consistently effective persuaders make their point(s) succinctly and get to it/them expeditiously.

Appellate judges read a lot of these things day in and day out and like any human beings, they (and I include myself) are more likely to be persuaded by fewer strong points (four or less) that are thoroughly and logically analyzed against the background of the facts and prevailing law, than anything the members of the audience (remember, these are the folks you are trying to persuade) find "excessively wordy and repetitive." Please note the entire sentence and the one which follows in the opinion:

The excessively wordy and repetitive 104 page 'brief' made it more difficult to discern whether the defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made....(Emphasis added)

For those who missed the cues here, the translation of what the court just said was that the lawyer did a lousy job representing the client's interest by laying out the alleged trial court errors in a coherent way (apparently the deputy attorney general wasn't any more effective for his client but got off a little easier since appellant's lawyer "started it"), so the court went ahead and did what the attorneys were supposed to do (and they aren't happy about having to do so).

The reality is that the burden of persuasion is on the appellant's counsel so if I pick up a brief that looks like the unabridged edition of War and Peace, I am going stop reading and start skimming, because I have a lot more briefs to get through before the day is out. For the same reason, if I can't quickly grasp what is being said I will move on rather than try to puzzle it out. The client here should be grateful that the court did his lawyer's job for him but this is an adversary system which means it is the lawyer's job to effectively fight for the client, not the court's.

Some might smugly declaim appellate judges, when something like this happens but at the risk of getting on my "high horse," the bottom line is that if you want to be persuasive in an appellate court, a trial court or anywhere else, you have to establish your credibility with your audience, give them one or more good reasons to want to side with you and then show your audience how to get there from here.

You can give the lawyer in this case the benefit of the doubt and say that he was thorough but that is not at all the same thing as being effective.

No Habla Ingles? Not for long in Indiana.

The Fort Wayne Journal Gazette reports here that Indiana judges are sentencing Hispanics to learn English.

A 5 bedroom courthouse complete with a housekeeper.

I had not heard of a courthouse that provides living accomodations for its judges but it turns out that one exists in Illinois. It seems that by using a courthouse built for the Illinois Supreme Court back in 1860 when the justices of that court "rode the circuit," the judges of the Third District Appellate Court, when sitting in Ottawa, stay at the five bedroom - each with private bath - courthouse. Another perk that comes with the courthouse is that the housekeeper also prepares breakfast and lunch for the judges when they are in town.

Ok. I admit it. I'm jealous.

From The Times of Ottawa.

Can it be that someone at Verizon Wireless reads HOWT? Apparently not.

I noticed that my Sitemeter logs have shown a number of page hits over the last couple of weeks to this post from Bedminster, New Jersey which just happens to be the corporate home of Verizon Wireless.

Now I am not taking credit for anything here - I'm sure it is just a coincidence - but there is some evidence beginning to surface that as of yesterday, Verizon Wireless may have stopped crippling the many features of the phones they sell including the new Motorola Razr V3 and some of the new LG models.

Nevertheless, it is nice to fantasize that one person (with a blog) might be able to make a difference.

Update: This was indeed a fantasy. As noted here, this rumor turned out to good to be true (scroll down to "Update #2"). The comments to the linked post also provide a plethora of epithets from less than satisfied Verizon Wireless customers.

"Over the river and through the woods, directly to jail (instead of Grandma's house) we go."

If this wasn't reason enough to avoid the services offered by Verizon Wireless, here is another. The Witchita Eagle recently reported on this test of Verizon Wireless' new GPS directions-by-phone service and found it wanting. It sent the tester a half-mile past her destination and to the local jail instead.

Maybe Verizon's "In" plan has a deeper meaning than I thought.

More Really Bad Appellate Advocacy

The response to the case I linked to in this post, has been pretty impressive, both here at HOWT and around the blawgosphere generally. One post over at Appellate Law & Practice deserves a response. S. Cotus doesn't understand why California's Third District Court of Appeals is making such a fuss. He opines: "I don'’t see the reason to act insulted that someone, and perhaps their lawyer, feels quite angry, and has the nerve to ask permission to file a long brief, files a long brief (which contains rhetoric and constructions of the law, like all briefs), and loses. This happens every day."

That, of course is precisely the point. While it is true that someone has to lose in an appeal, this lawyer's lack of professionalism insured that her client would lose. And S. Cotus is right. It does happen every day and it shouldn't. Moreover, it will keep happening every day because if there is one inexorable truth about the practice of law, it is this: Lawyers will do whatever judges let them get away with. Until judges draw the line in the sand, there will be more and more lawyers out there who will push the professionalism envelope in the wrong direction.

On a related note, in response to the preceding post, I received a couple of e-mails from other appellate judges who echoed my sentiments that there was an awful lot of substandard appellate advocacy going on out there and a couple of them even supplied some pretty persuasive examples.

And so, in the event more examples may be forthcoming, I will hold off naming any "winners" of the Appellate Practice Foot-in-Mouth Award but for your edification and enlightenment - what the heck, let's not ignore the entertainment value - here are the first two nominees:

In the Really Bad Brief category, comes this entry (MS Word file) from the Aloha State.

Here is an excerpt from just before the Supreme Court of Hawaii announces that it is referring the appellant's attorney for disciplinary action:

The opening brief, which was filed in this case, is an egregious example of the substitution of rancorous rhetoric for legal and factual analysis in appellate briefs. Not only does this burden the court, but, more importantly, it is adverse to the client's interests, and we view such matters with dismay. It is sound legal and factual argument, rather than vituperative sniping, that is compelling to the court. When an attorney, in briefing the court, foregoes the former to engage in the latter, the client is deprived of an opportunity to persuade the court of the merits of his or her position.

In addition to exhibiting contempt for the lower court judges, ignorance of the Rules of Court and a general lack of professionalism, the Supreme Court's opinion notes that, despite the existence of arguable precedent, the only authority counsel for appellant cites in favor of his position was this:

In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, ... judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit.

Help me out here. Is the "Aloha Spirit" sort of like the Common Law?

And now in the Really Bad Oral Argument category we have this little gem (mp3 file) sent to me by a colleague in Utah.

Keep those nominations coming.

Effective Appellate Advocacy - NOT!

One of my colleagues on the California Court of Appeals was kind enough to give me a heads up on this opinion released this past Friday.

To say that the panel of judges who heard this case are upset with the level of appellate advocacy by the appellant's attorney would be an understatement. To give you a flavor for the reasons why, here is how the opinion opens:

This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be.

In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an
issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy....

In these days of "pit bull" advocacy (both at the trial and appellate levels), some may not understand what the fuss is over. Some might say this is just an example of a lawyer zealously representing a client. To answer any who feel this way, I cannot improve upon the reasons given by Justice Scotland in this opinion:

These comments are harsh but deservedly so. An opening brief like the one filed in this case has many consequences. For starters, it undoubtedly is costly to the client to file such a brief that is long on words but short on substance. And by attacking the integrity of individuals involved in this case, the brief in effect falsely tells the client that she has been the victim of a grave injustice perpetrated by a corrupt system. In reviewing the case, this court will be able to see through such hyperbole. But having heard the message from her counsel, the client might give up on the system and not take the steps necessary to be able to reunify with her daughter. There also is a cost to those who have been so personally attacked by the brief. Everyone who toils in the juvenile courts recognizes that dependency proceedings often involve difficult and contentious matters pertaining to family relationships, and that emotions can run high. However, this does not mean they all have developed such thick skins that unjustified personal attacks against them create no harm. Certainly, portraying appellant’s developmentally disabled daughter in such a cruel way undermines, rather than advances, appellant’s relationship with her daughter, when a positive relationship is necessary to achieve appellant’s goal of reunification with her.

Another cost of the opening brief in this case is the need for respondent to file its own oversized brief, at undoubtedly great cost, to respond to every argument and show why, in the words of respondent’s counsel, the opening brief “misstates the facts or
includes facts not in the record, misstates the law, and/or fails to prove the claims made in [the opening brief].” In addition, the nature of the opening brief has caused this court to spend more time than it would have taken if the brief had not been so overwrought and over the top.

Amen.

How would you like to explain that opinion to your client? The world's longest brief might get you into the Guinness Book of World Records but it won't help your client and having your name forever linked to an opinion like this, for all the world and generations of lawyers to come to see, is definitely not my idea of a sound career move. I'm glad to see more appellate courts trying to both educate lawyers who really should know better and at the same time, nip this kind of unprofessional conduct in the bud.

About that membership in the Jailhouse Bar Association...."

Anyone who has ever done any criminal defense work can appreciate Ken's observations about jailhouse lawyers over at CrimLaw.

Although I was a prosecutor during most of my professional career, I did do a lot of court-appointed defense work for a few years and from both perspectives I agree with Chad's comment, that attorneys who defend indigent clients in criminal cases have the toughest and least appreciated job in law.

If a client had waved a section of the UCC under my nose convinced that it was the key to his defense for Grand Theft, I might have been tempted to say something like "but have you considered the application of section 3 of the Sherman Anti-Trust Act?"

I think this role may be a bit of a stretch.

People Magazine reports here that Simple Life star and professional spoiled rich brat, Paris Hilton, is being seriously considered for a role as Mother Theresa in a biopic about the Nobel Peace Prize winning Catholic nun who worked among Calcutta's poor.

Paris Hilton as a nun? Paris Hilton "acting" like she is relating to actual poor people? I think this role may just tax Hilton's acting abilities just a tad.

To repeat Keith Olberman's quote when Anna Nicole Simpson went to the Supreme Court, "The Apocalypse is upon us!"

My first thought was that Hollywood had sunk to a new low but then I noticed that it was an Indian director who was pushing this idea, so Hollywood, I guess I owe you an apology for thinking that anyone working in the Mecca of cinematic artistry could sink so low - or maybe the Indians just thought of it first.

Judge Pickering proposes an anti-activist constitutional amendment.

Retired Fifth Circuit Judge Charles W. Pickering, Sr., has this op-ed in today's Washington Times in which he laments that the televised character assassination that the federal judicial confirmation process has become has resulted in over half of those approached to serve in the federal judiciary saying, "No thanks."

Judge Pickering attributes this to "[t]he transfer of all the hot button social issues: Partial-birth abortion, abortion for teenagers without parental consent or even parental notification, same-sex "marriage," references to God in the Pledge of Allegiance, at public buildings, ceremonies and institutions, display of the Ten Commandments in public places, rewriting history to delete all references to a religious motivation in the settling and building of America, and hard-core and child pornography -- are being settled in the courts of our land rather than in legislative bodies." (sic)

I sympathize with Judge Pickering and entirely agree that the transformation of the federal courts into an unelected group of philosopher-kings (and queens), who make social policy under the guise of interpreting a "living" constitution, has resulted in every judicial confirmation becoming a political battle over social issues. The certain knowledge that you will be publicly vilified and personally attacked from the left, right or both, while your friends and family suffer right along with you, is certainly the reason for both the reduced number of highly competent lawyers interested in the federal bench and for the footdragging and outright roadblocks in the confirmation process for those candidates who are willing to serve. Having said all that, his proposed constitutional amendment has some flaws.

Judge Pickering suggests that an amendment be ratified that requires the courts to "interpret the Constitution and amendments in accordance with the common understanding of the relevant provision at the time it was adopted. This amendment does not affect the weight to be given prior decisions under the Doctrine of stare decisis."

Although Judge Pickering's intent seems otherwise, it sounds less precise to me than the primary canon of statutory construction which requires that words in a statute (or constitution) be given their "plain meaning." With respect to the last sentence of his proposed amendment, it also seems to me that if an "originalist" interpretation is constitutionally required, wouldn't that, by definition, trump any weight that stare decicis would have that conflicted with an "originalist" meaning?

If it is going to take a constitutional amendment to return the federal judiciary to sticking to "cases and controversies," perhaps, while we are at it, we could also revisit lifetime appointment of federal judges.

Hat tip to Howard Bashman at How Appealing.

"Fifteen men on the dead man's chest. Yo-ho-ho and some WiFi bandwidth. Aargh!"

This is the first one of these that I have seen but as WiFi spreads, I expect that more and more courts and legislatures will be wrestling with issues like the degree of criminal liability for "pirating" unused and unsecured bandwidth from a public place.

Via the Rockford Register Star.

Why law professors are the way they are.

Via Concurring Opinions comes a link to this post by Michael Livingston on why law professors are so edgy.

An excerpt

I have often marveled at how a group of people with nearly 100 percent job security, writing articles that have no discernible impact on the world outside academia, both work so hard and are so obsessively worried about their standing in the pecking order. The answer is provided by the theory: they behave in this manner because they are doomed to compete, without anyone else to share the responsibility, in an activity in which they can never know whether they have succeeded or even what succeeding might mean. Like musicians singing to an empty hall, or athletes playing in an abandoned stadium, they have only themselves and a few ephemeral signposts--a good law review cover, a visit at a nominally "prestige" law school, what have you--to signal that they are advancing in their quest. It is a bitter fate indeed, although presumably someone has to do it.

I have long done a bit of teaching as an adjunct at a couple of different law schools and I think that Professor Livingston makes an interesting point with one caveat. The law faculty I interact with seem to fall into a couple of categories. One group consists of professors with a mindset that "it is all about turning out good lawyers." In other words, the students come first last and always. The other group seems to consist of professors with an "it's all about me" approach where the focus is simply on demonstrating that you know more about the subject matter than anyone else on the planet and members of this group seem to me to be indifferent to whether anyone actually learns anything.

It is when members of this latter group hold forth in the faculty lounge, decrying a colleague's book or law review article, that I am always reminded of Henry Kissinger's classic quote that "University politics are vicious precisely because the stakes are so small."

"You're Sired!"

Only Donald Trump would think this is a page one story but you have to hand it to the New York Post for the the most imaginative front page.

"The name is HOWT. I carry a badge (and drive a Ferrari)."

I think I will start my own police department. I like the idea of a Ferrari as a police car but "Homer's Auto Service" as police headquarters?

Judging the "influences" on judges.

Joel Jacobsen over at Judging Crimes has this thought provoking (at least I found it so) post on the degree to which judges are influenced by their ideology.

Joel's point seems to be that although party ideology as such, has "zero" impact (to quote Justice Bryer on the same topic). Joel suggests that other "interests" are the real influences on a judges decisionmaking process. These "interests" include everything from outright bribery and delight in exercising raw power to more subtle influences such as friendships with the lawyers or identification with the types of clients the judge represented before going on the bench.

Joel's conclusion:

Electoral politics doesn't explain why judges' behavior tends to fall into predictable patterns. Conspiracy theories are just preposterous. The answer is hiding in plain sight: judges promote their own interests and gratify their own feelings and appetites, just like you [and me].

I guess I shouldn't be expected to agree with his conclusions but he raises some points that caused me to do a little soul-searching.

First of all, I agree with Joel and Justice Bryer that partisan politics plays no role in the outcome of decisions although I am sure that there are places where the exception proves the rule. Moreover, there have been and will be some (hopefully few) judges, in this country and elsewhere, who are willing to put their fingers on the scales of justice for a litigant who first crosses their palm with silver. Obviously judges who would do such a thing should be kicked off the bench, disbarred, drawn and quartered and shot, not necessarily in that order. The other "interests" Joel lists are a bit more subtle and deserve more thought.

Judges clearly have a lot of power and we can all agree that those with power should not abuse it. With power comes responsibility and again, given that there are clearly always exceptions (the black robed megalomaniacs who think that the light in the refrigerator only comes on for them), most of judges I have seen over the last 30 years, seemed to me to take the responsibility of their office and thus the exercise of their power very seriously, whether I liked the result in a particular case or not. That doesn't mean that the person who lost the case or their lawyer, might not feel otherwise but I'm striving for objectivity here. The identification influence Joel mentions is more subtle and probably does play a role at some level. Clearly, such "influences" can and sometimes do rise to the level of a judicial "agenda." The influences may also be counterintuitive. For example, in my experience some of the best examples of "hanging judges" in criminal cases used to be criminal defense attorneys or public defenders. Likewise, some of the most "liberal" criminal judges I know, used to be silk-stocking corporate lawyers.

Cases have a lot in common with works of art. Sometimes everyone who looks at the painting or sculpture sees the same thing and sometimes they don't. I guess, my contribution to this discussion is simply to note that inside those robes are men and women who are human and thus fallible, no matter how hard they might try to be otherwise. They come to the bench with the sum of their life experiences and whatever those were, they probably have some unpredictable measure of influence on their analysis, even if they don't dictate the outcome. Hopefully we might be able to agree that the measure of a good judge ought not be whether they are pre-disposed to identify with one party or the other without knowing anything about the facts, the law or the issues. So, for example, is it really fair to assert that just because before they became a judge, a lawyer represented the interests of a certain class of clients whether they were corporations, a public interest group, indigent defendants or was a prosecutor, that as a judge they will continue to do so? I don't think lawyers necessarily represent their ideology when they represent a client, although I'm sure that it is sometimes, maybe even often, the case. From my own experience, I do know that being a judge requires a quite different mindset from that of an advocate and that you don't make that transition overnight and you have to work at it until you do.

I don't know if it was intentional, but one of the attributes of appellate courts which ameliorate the effects of such "interests," is the collegial nature of the court. No single judge can make a decision on an appellate court. It takes at least one other judge to get it right or get it wrong. Many appellate courts, including my own, are made up of judges from all manner of legal backgrounds. Some were trial judges others were not, some were ivory-tower law professors who had little or no experience dealing with a client, others were lawyers with an office practice who actually know what a client looks like but never had to represent one in court, others such as myself, were civil and/or criminal trial lawyers and have an appreciation for how the law plays out "in the trenches" of an adversary proceeding. I think if you get a mixture of such people, the whole is often greater than the sum of the parts and "influences" such as Joel describes, while not eliminated, are certainly diluted.

In the final analysis, no judicial selection process is completely apolitical nor will you find capable people to be judges who weren't formed in the crucible of what life handed to them in the course of 30, 40 or 50 years. I don't think that the type of law an attorney practiced is a particularly good indicator of how they will perform as a judge. I do think knowing a lawyer's work ethic, personality and professional reputation on behalf of his or her clients, is.

A judge to be proud of.

As part of the 1995 peace settlement in the parts of the former Yugoslavia known as Bosnia and Herzegovina, those countries, under the auspices of a High Representative of the European Union, have set up a "Court for War Crimes, Organised Crime, Economic Crime and Corruption."

Why do I care about this? Because back in August, my former professor, colleague, and still my friend, Judge Richard S. Gebelein, retired from the state bench and took a two-year appointment as a judge of this unique court.

I heard from him recently and he tells me that although he misses being away from his family, it is very interesting work and he is enjoying it except for the death threats and bodyguards that go with the job (apparently they started bringing in "international" judges from other countries because local judges who refused to acquit some defendants kept getting killed along with their families).

I vacationed in Croatia and Bosnia in 1980 (before the war when it was all just one big Yugoslavia) and visited Sarajevo and Mostar. Bosnia is a beautiful place and will be even more so when they finish rebuilding from the war. Judge Gebelein tells me that unfortunately, Sarajevo the capital and the place he holds court, still largely looks like Berlin immediately after WWII.

Sometimes being a judge requires real courage. This is a job that needs to be done so hang in there Rich, you make me proud to know you.

Verizon, can you hear me now? Good, because I'm outta here!

I finally decided to replace my aged cell phone and after checking out the various models on the market now, I was immediately struck by the looks, size and features of the Motorola Razr. Motorola advertises that this phone has Bluetooth connectivity and can download ringtones, wallpaper and synchronize your calendar and address book through either a Bluetooth connection or through a USB cable connection with your PC.

I have been a Verizon customer since they first got into the cellular phone business and I have been happy with their network coverage and (up until now) their customer service.

Fortunately, before actually buying this phone, I learned that despite settling a class action suit, Verizon still deliberately cripples many of the features on all the phones they sell (while still charging the same price other carriers charge for an uncrippled phone). The only Bluetooth feature they don't completely disable is the ability to connect to some, but not all, handsfree Bluetooth head sets (coincidentally you can only reliably connect to headsets sold by Verizon). What you cannot do with these Verizon phones but can do with the same phone sold by any other carrier, is to get ringtones and wallpapers from your PC, download pictures you take with the phone to your PC for printing, download video clips and movie trailers and transfer data files between your PC and phone.

You can still do all of these things through Verizon - in fact, the only way you can do them is through Verizon. You just have to pay extra per picture, per download or per file to use Verizon's Get it Now, VCast, and Video/Picture Messaging services. Remember now, I am not talking about sending files, photos and such to others, which I don't have a problem paying Verizon for. I am talking about transferring them the length of a USB cable (> 2') or via Bluetooth (> 30') from my home pc to the phone in exactly the way the phone was designed to do by the mnanufacturer.

I mentioned in passing here (additional comment by others here and here) that Verizon had done this and linked here to a transcript of a conversation with an unrepentant customer relations representative who basically expressed the corporate view that they pretty much don't care what their customers think. Here is the party line in corporate speak from Verizon's own, Brenda Raney:

Verizon does business unlike any other carrier, and we make no apologies for that. ... [Those features] don't work with our business model.

Despite all of this, I was still leaning toward staying with Verizon because I thought that although it would be more inconvenient than a wireless Bluetooth connection, I could still get the benefit of the phone's features through a direct USB connection. I was even willing to pay extra for Motorola's Phone Tools and a mini-USB cable - until I read this fine print:

Note: If you are a Verizon customer, all multimedia and internet connection features in this software will be disabled due to carrier request.

This made me wonder why any Verizon customer would bother buying it and it also turned out to be a wakeup call when it suddenly dawned on me that Verizon was counting on people like me who would just "suck it up" rather than switch carriers. It also occurred to me that the other carriers were probably considering similar profit gouging measures and were waiting to see if Verizon paid any sort of price in terms of losing customers.

So, notwithstanding a long and otherwise comfortable relationship with Verizon, I have decided that when my current contract is up next month, I will vote with my feet on Verizon's new attitude toward their customers cattle and take my business to either Cingular or Alltel. Maybe if enough other customers follow suit, Verizon and other carriers will get the message. If they do, I might even consider coming back. In the meantime Verizon, I'm gone.

Never let it be said that Michigan isn't tough on sexual predators!

As reported by the Detroit Free Press here, Thanks to good detective work and DNA testing, Jeffrey Haynes will become the newest member of the Michigan Sexual Offender Registry. He achieved this distinction for sexually assaulting Thelma and Louise, a pair of Calhoun County sheep.

What does Haynes have to say about it:

"Um hmm, ... If I did do it, which I'm saying I'm not, that is a sick person, and if I did do it, I'm sick."

I think I will leave it at that.

Make a note - stash the coke before you press that OnStar button.

Press that little blue button and lose your $50,000 Cadillac, your stash of cocaine, $1900 in cash and probably your girlfriend. Now aren't you glad you subscribed?

He really looks pissed, doesn't he?

This doesn't exactly inspire confidence.

I wonder if they use their own software.

Public pressure returns judge to bench in Iowa.

As the article says, "messing with the funnies is no laughing matter." Judge Parker has been around since 1952 and it looks like he is staying a while longer - at least in Iowa.

For the lawyer who has everything but a life.

Here is just the gift for the new associate or the anal retentive partner. This watch will remind you to bill every hour of every day.

I know I've been a slacker lately...

I realize that lately I have not been blogging at nearly the level that I have in the past. My day job has kept me very busy since the first of the year and if there is any light at the end of the tunnel, it is just as likely to be a train. In addition, I am also working on a couple of extracurricular projects. Although this blog doesn't have many readers, you are faithful indeed and deserve better.

I won't go so far to go on any formal hiatus and I will drop in when I can but I expect it to get worse before it gets better.

When Good Samaritans go bad.

Some people apparently have a mixed set of moral values. Tell authorities that you have recovered someone's lost property and then decide to keep it for yourself.

Huh?

Somebody flunked Traffic Engineering 101.

Robotic slime?

Shades of Mystery Science Theater 3000.

From New Scientist.

David Hannum is still right!

David Hannum observed in connection with P.T. Barnum that "there is a sucker born every minute." There are, have been, and will continue to be, innumerable examples that corroborate his observation.

The latest verification of Hannum's theorum is Internet movie rental powerhouse, Netflix's settlement of a class action suit over "throttling" its customers.

Netflix, advertises that for a monthly membership fee of $17.99, you can rent as many movies as you want to each month. Such a deal! Of course under this business model, Netflix makes more money the less you actually request their DVD's.

So what Netflix didn't tell its customers until a recent settlement of a class action suit, is that if you actually take advantage of their offer to the point that a "fairness algorithm" in their computer determines that Netflix's profits are no longer maximized, they deliberately slow down deliveries of future DVDs. The actual code words to legitimize this which Netflix has now added to its Terms of Service is that they "give priority to those members who receive the fewest DVDs through our service."

Misleading advertising that lulls customers into thinking that they are getting more than is being delivered is certainly not new, for example Verizon Wireless has deliberately crippled all of the Bluetooth enabled phones that they sell in order to force customers to pay Verizon for extra features that the phone you are buying would otherwise provide free.

I guess what surprises me but shouldn't, is that companies are increasingly unrepentant when they are caught at this stuff because the customers keep coming anyway.

*** Update - In the "great minds think alike" tradition, Daniel Solove at Concurring Opinions has also posted here on the Netflix throttling policy.

42 Meme Tag

Ken at CrimLaw has tagged me with this so I suppose I have to respond before I can settle down to the Super Bowl. Here goes:

Four jobs I've had:
YMCA Camp Counselor
Machine shop drill press operator
Truck driver
Bartender


Four movies I can watch over and over:
Animal House
Independence Day
O Brother, Where Art Thou
National Treasure

Four places I've lived:
Coronado, CA
Pine Valley, CA
Cleveland, OH
York, PA

Four TV shows I like:
Countdown
NCIS
24
Monk

Four places I’ve vacationed:
Yellowstone Park
Dubrovnik, Yugoslovia
St. Petersburg, Russia
Stowe, VT

Four of my favorite foods:
Country ham biscuits
5-alarm chili
Roast turkey with all the trimmings
Chocolate-bourbon pecan pie

Four websites I visit daily:
How Appealing
Autoblog
Gizmodo
The Trivia Hound

Four places I'd rather be:
Sailing
Sipping a libation on the porch of the Grand Hotel on Mackinac Island
Sneaking through the woods, paintball gun in hand
Biking around Bermuda

Four bloggers I'm tagging:
Gavin
Steve
Julie
The Movie Snob

Judge Leads Mutiny Protest.

Manchester (England) Judge Fletcher Christian Alan Berg led a sucessful passenger mutiny protest over the size of the refund Cunard Lines offered passengers on the Queen Mary 2 when a damaged prop forced cancellation of three ports of call.

Judge Berg insisted on a full refund for all passengers instead of the 50% refund offerred and got it when he pointed out that "We have seen a lot of sea for the last 12 days. If I wanted to make a sea voyage on a liner to Rio I would have booked one - but I booked a cruise."

"Inherently the definition of a cruise is that one stops at different ports."

I suspect he must be a pretty good judge.

Getting the Best from Your Lawyer - British Style

Gavin at Diary of a Criminal Solicitor notes that the British government's Department of Constitutional Affairs has published a press release containing its "GETTING THE BEST FROM YOUR LAWYER: 7 STEPS TO A BETTER DEAL".

He has also posted here the answers his clients want to hear to the questions posed by the DCA:

1. What will the legal adviser do for me?

Anything I ask him. Hopefully he will get me out of the Police Station on bail, but if he can't do that he should be able to get me bail at the Magistrates Court. He can then defend me with whatever rubbish I tell him so that I can be found not guilty despite the usually compelling evidence that suggests I am guilty.

2. How much will this legal adviser cost me compared with others?

Cost? What's that? I thought that was all done on legal aid. I'm on benefits you know.

3. What do I get for my money?

Usually fags and booze, occasionally I'll get some coke - and if things are really bad I might get some crack with my cash. Usually I don't need money because shoplifting is easy enough, and hey, what you can take for free doesn't cost me any money.

4. How often has the legal adviser handled this type of work?

Too many times, in fact I am wondering why he is always down the Police Station or Magistrates Court - he doesn't seem to know any other kind of work. When will he become a barrister?

5. How long will it take for the transaction to be completed?

Transaction? What? A drug deal - no, not me mate.

6. What can I do if something goes wrong, or I am not satisfied with the service provided?

I'll transfer if I don't get what I want. If I don't get bail, or I don't get some fags or tobacco off my brief I might go elsewhere to another firm. Getting a conviction or being sent down is not a problem, I just need my tobacco.

7. Have I got a good deal?

As long as I don't get convicted of the offence that I have been charged with I will have got a result, even if it just being convicted of a lesser offence.

It's not so different on this side of the pond.

Why you should carefully plan your getaway.

Sometimes there is a downside to not getting caught by police.

You can't make this stuff up.

As you may have noticed, I have been blogging at a much reduced rate of late. This is mostly due to a sudden increase in work. I have been reading many more briefs and transcripts than usual and I took a bunch of these home to review over the weekend and buried in one of the transcripts I found this little gem:

ATTORNEY: Please describe how the defendant was driving.

WITNESS: The guy was all over the road. I had to swerve a number of times before I hit him.

Do written constitutions undermine the rule of law?

Over at LawCulture, Yale UVA Law Professor Rosa Brooks poses here the question of whether a written constitution such as ours, doesn't actually inhibit "rule of law values."

In pertinent part, Prof. Brooks writes:

Inevitably, as time goes by after the initial drafting and adoption of a constitution, it becomes increasingly likely that changing circumstances will make some/many of the constitution's provisions less salient and helpful. If the Constitution is difficult to amend, as is the U.S. Constitution, this problem may worsen with time. There are ways around the problem-- one can develop interpretations and doctrines that allow us to "bring the Constitution up to date" without actually amending it-- and this is of course what we have done in the U.S. I think this is as it should be. But the problem is that the more one is forced to depart from a "straight" reading of the Constitution to justify "modern" solutions to problems-- the more one is forced to rely on legal fictions and creative interpretive extensions of the text-- the more one risks undermining other values associated with the rule of law, like transparency.

Here's the paradox: if a society "strictly" adheres to a constitution as the decades and even centuries go by, it's doing itself a disservice, since the constitution will become more and more "out of date," but if a society relies on ever fancier interpretive footwork to shoehorn modern understandings into constitutional categories, perhaps the society risks undermining public commitment to the rule of law itself, since the "ordinary" person (and even many lawyers) will have less and less faith in the process of constitutional interpretation (or in judges, presumably).

I must be missing something but I thought by definition laws are written to provide both notice and consistency in a code of conduct. Neither of these is found in evolving individual concepts of how others should conduct themselves. I suppose I am oversimplifying things but if a written constitution is a contract or compact between the people and their government (or in the case of the United States, a three-party compact between the federal government, the states and the people), it seems to me that the "rule of law" requires that the contract be adhered to and if it is so "out of date" that it does not provide a "modern solution," it should be renegotiated by the parties through amendment, no matter how "unwieldy" that process may be.

The alternative to that approach is the "philosopher king" (and queen) approach recently advocated by Canada's Chief Justice and apparently by Prof. Brooks. To call this approach "following the rule of law" seems to me to be absurd on its face and in any event, I submit that this "rule by the whim of unelected elitists" approach has proven at least as "unwieldy" as Prof. Brooks suggests those pesky written constitutions are.

*** As "Anonymous" points out in the comments, Professor Brooks teachs at UVA, not Yale (although Yale is where she got her law degree) - sorry about that.

"Hard-assed" judge? What about the dishonest prosecutor?

When I see a link at a great blog like Arbitrary and Capricious with a title like "Field Guide to the Hard-assed Judge," you just know that I'm going to check it out.

The link led to this post that seems to suggest that "hard-assed" appellate judges look like the one in the picture to the right. The post notes that the "physiognomy of a hard-assed judge" is basically a robe above which is perched a face with a high forehead and beard.

What I found most telling was that the proximate cause of the "hard-assed" characterization for the appellate judges in question, was a prosecutor who was apparently playing fast and loose with the record and was caught at it by the judges. I guess I am more than a little surprised that the author of the post seems to think that judges getting upset about a lawyer lying to them was much ado about nothing.

I don't know about other judges, but in similar circumstances, I would also be more than a little upset. It is bad enough when any lawyer is caught lying to a court. Aside from the fact that it is unethical to deliberately mislead a tribunal, your credibility as an advocate, both in that case and any future case before any of those judges, is toast.

I suppose that some lawyers think that appellate judges aren't likely to be very familiar with the trial record and perhaps in some courts that may even be the case. On the other hand, the culture on my court and, I suspect on most other appellate courts, is to be very familiar with all portions of the record that relate to the issue(s) on appeal. In my court, you are very likely to get caught if you pull a stunt like this.

It is even worse if, as here, the prevaricating lawyer is a prosecutor. The law holds prosecutors to a higher standard than other lawyers (even on appeal). During a long former career as a prosecutor I prided myself on that fact and I have no problem insisting that prosecutors meet that higher standard when they are in my court.

If in the collective judgment of the three-judge panel a prosecutor was deliberately misrepresenting the record, we would not "have him clapped in irons" but the majority of my colleagues and I would likely have admonished him in open court for violating the ethical rules, terminated his oral argument immediately and written a letter to the disciplinary arm of the bar signed by all three judges, complaining about the ethical breech and enclosing a transcript of the argument or brief and the appropriate pages of the record.

By the way, just to set the record straight, I look nothing like the picture above. We "hard-assed judges" look more like this:

Scrutiny v. Secrecy, Part II

During the furor over the nomination of John Roberts to the Supreme Court of the United States, I noted here that the perception elsewhere (in that case, Australia) is that, with all the warts and blemishes, the public vetting of our judicial appointees may be preferable to the secrecy that accompanies the judicial appointments in other former English colonies.

As the dust of the Alito nomination brouhaha begins to settle, it is worthy of note that our neighbor to the north is also in the process of filling vacancies on its highest court and as Professor Allan Hutchinson of Toronto's Osgood Hall Law School at York University observes here:

[T]he difference in approach to these judicial appointments is quite striking. The American system begins with an absolute executive recommendation which is only constrained by political considerations. But it ends, occasionally and famously, in a public rejection of that proposed candidate after a very public debate and vote by elected representatives. It may not be a pretty or edifying sight, but it at least possesses a certain transparency and openness.

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge. Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it. It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

Professor Hutchinson also opines that "As recent decisions on health care demonstrate, it is no longer credible or acceptable to pretend that adjudication is or can be about making formal and impersonal decisions in accordance with existing rules, especially in constitutional matters. Judging is about social values." Sadly, Professor Hutchinson's view of the Canadian approach to judging, seems to be corroborated by his nation's Chief Justice as noted here.

While I find much to disagree with in Professor Hutchinson's piece, his conclusion that "More, not less information about our rulers is the best route to an improved democratic polity" is spot on.

He ends by observing "Better the devil you know than the one you don'’t. In this, at least, the United States has the democratic better of us."

Talk about being damned with with faint praise!

Anonymous bloggers and posters beware - Create e-noyance and go to jail!

From C|NET News comes this little tidbit:

It seems that buried in the so-called Violence Against Women and Department of Justice Reauthorization Act, recently signed into law by President Bush, is language that prohibits the posting of annoying Web messages or sending annoying e-mail messages without disclosing your true identity. Sec. 113 of the law, an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."

The penalty is up to two years in a federal prison in addition to hefty fines.

I won't offer an advisory opinion on the constitutionality of this provision but for the time being at least, I hope you don't find any of my posts annoying.

***UPDATE***

Over at The Volokh Conspiracy, Orin Kerr posts here that this is much ado about nothing. Eugene Volokh rebuts that position here.