January 2017

I sometimes find myself having the same conversation with different colleagues several days in a row. It may be that my thoughts find their way into the conversation or that there are certain trends. It may be pure coincidence. In the most recent version of the repeating conversation phenomenon, I have heard colleagues complain about the nature of practice. And here is the three-fold refrain.

  • The market is flooded with attorneys where I practice. And I cannot provide the service that I want because I am getting beaten on price by attorneys who will not do the same good job I would do.
  • Every year the legislature/sentencing guidelines/judges/parole board/appellate courts (we could continue to fill in these blanks for a while) makes it harder for me to provide very much to clients.
  • Client are so difficult. They have unrealistic expectations, and they want to micro-manage their case.

I have a couple of thoughts about what I am hearing. And when I approach it this way, I tend to gain a new perspective.

Continue Reading Why Some Law Practices Struggle

We live in strange times. But I still have faith in the judiciary and in lawyers. It took us just over a week of the Trump presidency to reach our first constitutional crisis, and the judiciary seems to be keeping its head. That branch of government will be tested in the months and years to come.

Our President reveres President Andrew Jackson. Andrew Jackson is perhaps best known for defying a court order so that he could could deport people in massive scale. In response to the United States Supreme Court’s ruling in Worcester v. Georgia, President Jackson said “John Marshal has made his decision, now let him enforce it.” That case was also an injunction case. Six years after the ruling in Worcester, the Cherokee were forcibly relocated to Oklahoma in what was one of the darkest moments in American history. The parallels between then and now and between the historic president and the modern one who reveres him are clear.

But I have faith in the judiciary and in the rule of law. Just this weekend, teams of volunteer lawyers showed up at airports around the nation to lend a hand to those left stranded by a bewildering executive order. They turned airport cafes into law offices and e-filed petitions for habeas relief. Lawyers visited with the families of those victimized by recent executive action. And courageous judges stepped up as well. One such judge was Ann M. Donnelly of the Eastern District of New York. Those who know her describe her as one who “will not be perturbed by the storm around her” and as one with “a firm moral compass.”

I can think of no time in our history when lawyers and the judicial branch are more critical to the survival of our Republic. Our nation is still young, and America is still very much an experiment. Lawyers like those who stepped up over the weekend and judges like Ann Donnelly provide hope. But the power of the judiciary and of our constitution is only as strong as the American people and our belief in the rule of law and our founding principles.

Amateur HourIn episode #12 of First Mondays, Dan and Ian play cringe-worthy clips from the recent Supreme Court argument in Lee v. Tam, a case involving the disparagement provision of the Lanham Act and the First Amendment. There is a similar case in the pipeline involving the Washington Redskins. And counsel in that case argued that cert should be denied because of the poor quality of counsel for the band, The Slants. Counsel argued that the case involving the Redskins was a better case because of better counsel. Last week, the commentators speculated that the lawyer might be angered by the criticism and rise to the occasion. Alas, he did not.

At 20:27 in the podcast, Dan and Ian play some regrettable moments that seem to reinforce the choice of counsel argument. In the first clip, counsel responds to a hypothetical question by saying “that’s not a question before the Court.” Judges hate this response. Every panel I have ever watched at a CLE on oral argument features a judge or justice saying that judges hate this response. And it goes downhill from there.

The First Mondays guys, both former SCOTUS clerks, go on to say that the poor advocacy problem is most prevalent in criminal cases before the Court, to the tune of three to four arguments per term. Typically, the criminal lawyer who handled the case keeps the case all the way to the Supreme Court. Most criminal lawyers I know talk of their dream of one day presenting a SCOTUS argument. Often, I try not to picture how that might go. So, I’m not surprised at the notion that it so often doesn’t go well.

They then draw a medical analogy. Imagine a patient is diagnosed with a rare disease and the local general practice doctor chooses not to hand the case over to a specialist because the procedure will make the doctor famous. Such a thing would not happen in medicine but does happen in the law. And it apparently happened in this copyright case.

The problem at issue here goes deeper than advocacy at the US Supreme Court. Far too often, a lawyer tries a complex criminal case because he did a great job at drafting Aunt Jean’s will. When I take a new criminal appeal, this is generally the background. Or the lawyer handles an appeal simply because a potential client with an appellate issue walked in the door one day. And the client comes to me with a mess and a prayer for possible habeas relief. And it is not uncommon for me to get a call from a lawyer with a question about an appeal that they are handling. It becomes clear, not far into the phone call, that the deeper problem is that the lawyer is in over his head and should not be doing the case.

Dan and Ian go so far as to say that the choice of counsel doctrine should not apply at the Supreme Court level. Not only do I agree. I think the argument doesn’t go far enough.

IMG_0017Yesterday, I took a drive out to the hinterlands to visit a habeas corpus client. I met up with a law school intern for the visit. During the time we spend together, the client what to know what he could do to assist in his case.

Over the course of my career, my thinking has evolved on the subject of clients and their desire to assist in their case. There’s a meme circulating among colleagues that says “don’t confuse your Google search for my law degree.” 10 years ago, I would have worn the t-shirt.

Then I try to imagine what it would be like to have no control over anything in my life and no freedom. I would want some input in my case. I spoke to a colleague who is an appellate lawyer in an indigent defense agency. She gives the clients a copy of their transcript upon request and encourages input. She has never experienced a downside with the practice. Never. Of course, at the end of the day, the lawyer chooses the issues. And knowing which issues to include is a big part of the art and science of law. But it doesn’t help the relationship to discourage the client from having a voice. I found an excellent law review article on the topic of how to allocate the decision making between the attorney and the client. The article suggests that a collaborative model focused on the client works best. In this model, their lawyer works to inform the client about options and empowers the client’s ability to choose as much as possible, having had the benefit of the lawyer’s experience and wise counsel.

So, here is what I told my client. I said to get in the law library every chance he could find. And I told him that if he finds anything that he thinks might be helpful to write me. He was happy with this advice. I think it made him feel like he had a voice in his fate. And who knows, sometimes clients come up with good ideas if we give them a chance.

The oral argument transcript is now available on Nelson v. Colorado. the audio should be available later this week. This case challenges the constitutionality of Colorado’s Exoneration Act on procedural due process grounds. The two petitioners in the case were each convicted of crimes. While incarcerated, the State of Colorado took fine money from their prison accounts. One was retried and acquitted. Another will not be tried again. After their convictions were reversed, each filed motions on the criminal case demanding that their money be returned to them.

The State of Colorado said that the money could not be returned because the defendant failed to file a civil claim for the return of money under the Exoneration Act. Under that act, the defendants would have been required to file suit and prove actual innocence in order to have their fine money refunded to them. For each, the amount of money paid was so small that it would have been eaten up by attorney’s fees.

Petitioners argued that the Act was a violation of procedural due process because the hurdles to a refund were ridiculously onerous. The State of Colorado argues that the Act comports with Due Process because there is a judicial process for the refund of money.

One should never read too much in to oral argument, but it appears that the petitioners fared well. Adam Liptak has more here. Oyez has more here. And the SCOTUS Blog’s coverage is here. 

I’ve been hearing about First Mondays for quite some time. First Mondays is a podcast covering the United States Supreme Court. They record each week that the Court is in session. The co-hosts are both former SCOTUS clerks. I’ve only listened to one episode, the one for this week. But I’ve subscribed will become a regular listener.

As an appellate lawyer, I like the way the hosts anaylze briefs on cases to be argued and give their opinion about what made the question presented good. They go “inside baseball” enough to help me improve as a practitioner.  I also like the coverage. It can be difficult to keep up with the docket, and this podcast will help me stay current without getting bogged down.

But this is also a podcast that I’d recommend for a non-lawyer who is interested in the Court and cases on the docket. The podcast is accessible for a non-lawyer. In today’s episodes, for instance, the hosts quizzed each other on  questions presented from famous cases. The trick was that they used words from among the 1,000 most common words in the English language.

I will be taking this podcast with me on future commutes and runs.