February 2016

I’m all for democracy, but election season is not fun for lawyers. This year, unlike any other, I  have been spammed by lawyers running for office:

  • whom I do not know and don’t think I’ve ever met;
  • In counties where I seldom practice; and
  • who delivered a prepared telemarketer-style speech when they get me on the phone.

It’s tricky to deal with someone who is running for DA, Solicitor, or Judge because the person hitting you up for money may one day sit in judgment over your case or act as prosecutor to your client. It is even trickier when support for this candidate will be recorded as a matter of record and available if the person you support loses that bid. Then the competitor will see you as a person who was against her. It all feels strangely akin to a protection racket.

Even worse is the way I’m being pitched this year. And it’s gone down like this. I get a message from my assistant that Mr. Smith with the X County District Attorney’s office would like for me to call him. The person was vague about what the call was about. Or I get that Judge Jones would like for me to give him a call. The person does not have a name that I immediately recognize, and I’m pretty sure that we don’t have a case together. Again, it’s vague. But who wouldn’t call a prosecutor or judge back?  Sometimes DAs or judges call because they are referring a case or because they want to brainstorm a legal issue. So, I call back. In no less than 5 times in the past month, I’ve called the person only to get solicited for a campaign contribution.

I’m chairing one judicial campaign. In that instance, the candidate is someone I believe in and whom I’ve known for a long time. We aren’t spamming people.

So, here’s my statement of policy. If you are running for judge or to be an elected prosecutor and I don’t know you, you need to announce the actual reason for your call when you leave a message for me. If you don’t, then I will assume that you play fast and loose with the truth and are unsuitable for the office you are seeking. I think you are misusing your current office to get me on the phone to create a situation where I donate money to alleviate an awkward social situation that you have created. If you get me on the phone, I’ll just let it be awkward. I’ll exit the conversation quickly, and you won’t hear back from me.

Before this week, I had never heard of the All Writs Act of 1789. As I understand from the news accounts I have read this week, a Federal Magistrate cites it as authority to order Apple to develop software that law enforcement can then use to break into an iPhone. For anyone who’s ever dealt with this on their phone, here’s what happens. If you try repeatedly to enter the password to unlock an iPhone, successive unsuccessful attempts result in a delay. So, you can’t try to log in for a set period of time, which increases with each attempt. Eventually, try enough times, and the iPhone wipes out all of the contents. This protects iPhone owners from a brute force attack or a program that tries random characters until it reaches the right combination.

In an open letter, Apple CEO Tim Cook has explained that it complies with court orders and subpoenas to provide materials in its possession.

However, the password to the evidentiary phone at issue is not in Apple’s possession. The phone is not in Apple’s possession. It cannot provide material it lacks. Until this week, I would have thought that this would be the end of the story. But alas no. A Federal Magistrate Judge has ordered Apple to create software that would unlock the encryption on this phone and provide that software to the government.

I’m new to the All Writs Act of 1789, but this seems, at first blush, like complete lunacy:

  • It seems odd to me that the government could conscript software engineers to code up anything and give that code to the government. This feels like indentured servitude.
  • It’s a bit unsettling that the argument from the government is, “make this software for us and give it to us. We’ll just use it for this one special case. Trust us. We’re the government.”
  • It’s only a matter of time before this software, once created, gets into the hands of bad guys or bad governments.

Maybe I’m missing something here. And I’m open to having my mind changed. But this sounds dangerous.

Over at Simple Justice, Scott Greenfield has a post about the future of Twitter (with a scatalogical title). In summary, the problem with Twitter and several other “tools” is that, while it has attracted many eyeballs, it is difficult to turn those eyeballs into money.

I can’t speak to the broader economic trends. I can only speak to my use of Twitter and how it is changing. In the broader sense, I’m making similar changes in my use of Twitter, Facebook, and Instagram. I’ve not quit these services (yet). I have, however, taken all of the apps related to these sites off of my phone. At a practical level, it is difficult to write briefs and prepare for court when the Siren’s call of these things is a click away. And with all of these services, I’m reminding myself that I’m not the customer; I’m the product.

I’m getting more work done, I don’t miss these things one bit.

I’ve obsessively read as much as I could find over the weekend about the upcoming confirmation battle to replace the late Justice Scalia. And there is much to read. Saturday’s news and what unfolds over the next weeks will be the subject of many books, if not movies, to come.

  • Scott Greenfield focuses on two things: (1) the President’s Constitutional duty to submit a nominee and (2) the fact that political operatives did not observe much of a respectful time before beginning to maneuver.
  • The NY Times has an editorial up arguing that Senator McConnell may suffer negative political consequences for categorically refusing to allow the Senate to even vote on a nominee.
  • Just where is that ranch anyway? USA Today ran a story today about Justice Scalia’s final hours and about the ranch where he was staying.
  • Bill Rankin has a blog post up regarding Justice Nahmias’s reaction as former law clerk to Justice Scalia.
  • The Wall Street Journal has much inside baseball nomination analysis.
  • Slate and many others have some analysis up about what happens in the event of a 4-4 tie on a vote (bound to happen).
  • Needless to say, this event is right in the SCOTUS Blog’s wheelhouse.

This is an interesting time. I have not been much of a news junkie about the presidential election. For the past several days, I have been all over the news and will be for what will be an exciting several weeks ahead.

imageRecently, I heard the Executive Director of the State Bar of Georgia mention that his job included running a parking lot. One of the benefits to membership in the State Bar of Georgia is use of free parking near Phillips Arena and the Georgia Dome (and soon to be the new home to the Falcons). The parking deck is also available for use at bar CLEs.

The parking deck was perviously manned by an actual person in a booth at the entrance and exit. When you left, there was a nice man there who looked at my bar card, took my parking ticket, and told me to drive carefully. They’ve eliminated his position and replaced him with a little machine. You also have to remember to bring your ticket inside for validation. This way is probably more efficient, but I will miss the parking lot attendant telling me to drive safely.

We’re away for the weekend. And I happened to look up and see the news on television at a restaurant. And it still does not quite seem real.

When I was a law student, Scalia opinions were the first ones I remember reading and enjoying. I won’t say that I agreed with them all. But they were all brilliant. And his originalist philosophy was always consistent. So, occasionally it took him to pro-defendant places. Crawford v. Washington is the first one that comes to mind.

As a lawyer, I suppose that these things resonate with me more profoundly than they might in the general public. But this is one of those “I remember where I was when I heard” sorts of news events.

In a while, I will start to think about what is next. But today I reflect on the end of an era.

The podcasts I listen to cost me money. On a recent podcast, I caught an interview with Cal Newport, who discussed his new book, Deep Work. I’ve been taking a break from business books lately, but this one is very different. His thesis is simple. Our technology has created an expectation and a temptation that we work in shallow technological endeavors, miring us down in various inboxes, from our email, to our Facebook feed, to tweets, to photos on Instagram. Knowledge workers (I include lawyers in that category) are losing the ability to engage in deep work necessary to be truly successful at a time when it is more necessary than ever. And if we can reclaim the skill to engage in deep work, we will cultivate rare marketable skill. And he proposes some radical solutions to get there (I actually bought this book in a physical hardback form, versus a Kindle or iBooks download thinking that he medium is also the message. As a result of reading this book a bit obsessively, I’m revisiting many of my work habits.

From another podcast I have found Debt by David Graeber. I’m just past the introduction. But I’m already understanding the Occupy movement a little better. I’m not saying that I agree with Graeber (yet). But I’m challenged by the perspective.

Then, on a completely different note, a colleague on a mutual legal project asked me to go into Clarence Darrow’s closing argument in the Leopold and Loeb trial to pull out some quotations for us in our endeavor. This activity has gotten me obsessed with the Leopold and Loeb trial. And it’s inspired me to do something that I’ve never thought of doing before — finding old transcripts from famous trials. The entire Leopold and Loeb transcript is available online, and it’s amazing!

Every now and then, I e-file things at the Supreme Court that require me to attach a set of exhibits. There are a few categories of things that require you to petition for the Court to take your appeal. And when you do that, you have to put together your own record into a sort of proffer of what the record would show if the appeal were granted.

In a way it’s much easier now than ever. There was a time, when this activity meant a trip to a copy shop or printer to make a huge set of binders with copies for each justice. Many trees died. Today, you e-file your exhibits.

E-filing the exhibits brings its own challenge. The Court prefers that you upload one big exhibit with internal tabs. Though the system is set up to take individually numbered exhibits. The problem there is that the numbers only go to ten, and sometimes there are more than ten exhibits. Another problem is that a multi-volume transcript may exceed the upload data cap. Then you must subdivide the exhibit. And it all gets confusing. pdfs, beyond a certain length, get kicked out of the system.

I learned yesterday from someone that you can e-file the discretionary application, await docketing, then log back in. At this point, when you upload your exhibit, the data cap goes away.

Today, as I nervously watched the status bar on my web browser go, I prayed. And voila. The Court took my 1,700-page exhibit packet.