Ok, I'm a little scatterbrained as I'm supposed to be finishing a voir dire prep for a trial on Monday, but I need the distraction for a moment. So, as opposed to my usual pontifications, this week's posting is going for more of a 'shotgun' approach.
TRUTH:
Not that I can tell that anyone has actually visited this page other than myself lately, but I do want to apologize to whomever might have actually visited this site more than once in the past three weeks for the last of a posting. My justification (no, not excuse, but justification) for the delay is that I picked up some sort of nasty cold bug that just happened to coincide with the start of the fall allergy season. Whippee....
JUSTICE
Where to start? There's the growing nonsense over in Hunt County, Texas where some intrepid Assistant D.A. actually INSTRUCTED the Sheriff of the jail to record and turn over phone calls between the accused defendant and his attorney.
Are the fundamental precepts of the attorney-client privilege and the cannon of ethics COMPLETELY foreign to these people?
Then, of course, there's O.J. I think I might actually have something constructive to say on this. O.J. has been accused, and I dare say proven, to be a self-centered narcissistic bastard. Descriptions of his recent behavior, however, lead me to believe that his narcissism has reached (or returned) to a pathological level. One should, were one interested, review the diagnostic description and listing of NARCISSISTIC PERSONALITY DISORDER in the DSM-IV.
I've got a couple of other ideas percolating for future postings, but I'll leave it there for now.
PERFECT PIZZA
Last night, a friend (and fellow criminal defense attorney) and I caught a late showing of the movie. SHOOT 'EM UP starring Clive Owen, Monica Belluci, and an over-the-top Paul Giamatti.
And the simplest review is this: it's GUN PORN. There are loving shots of guns. There are action shots of guns. You see guns undressed. You see guns stroked, prodded, shoved, you name it. Hell, there is literally a sex scene in the middle of a gun fight (is that a gun fight in the middle of a sex scene?)
And, admittedly, it's fun. It's over the top and is NOT to be taken seriously. This is NOT a film in the vein of the Bourne Supremacy. It gives as much fealty to the fundamental laws of physics that Michael Bay did in TRANSFORMERS.
There's no need to mention a plot because what little plot there is exists solely to serve the various 'set pieces' of action.
Worth a view? Sure. Worth a repeat? Eh, not so much . . .
Well, time to head back to the preparation of the State v. Dashawn Brown, which probably means at least another ten day delay in my next posting.
Until next time . . .
Friday, September 21, 2007
Friday, September 07, 2007
The Death of Formality
JUSTICE:
It has seemed to me, of late, that we as lawyers no longer impart to our clients – and apparently this failing also extends to Judges, Prosecutors, and Court Staff – the sense of formality, ritual, or “mystery” (as used in a quasi-religious context) to the criminal justice system.
Informality, in my opinion, allows and perhaps encourages a ‘slapdash’ approach to the practice of law. We (and as a mea culpa, I do include myself in this) negotiate terms and conditions of plea bargains ‘on the fly’ with Prosecutors in unsecure, semi-public workrooms in Dallas County. Very serious consequences are routinely discussed in casual, even flippant terms (I, myself, am perhaps more guilty than most of this). We (yup, still me too) admonish our clients of the consequences of waiving their fundamental constitutional rights in a period of time that is measured in minutes, if not seconds.
As I was writing some of these words, I was in court observing a plea and sentencing for a defendant’s case that is at least a 2nd degree felony drug crime. The defendant was standing with his attorney in front of the judge giving testimony. The prosecutor was leaning against the witness stand. (Again, these are things that I myself have done routinely.)
Perhaps the court system is overcrowded. Perhaps the system would break down if every case were treated with the kind of formality that is required both by ethical standards and by statute for capital cases. Granted, the possible consequences of a capital case far eclipse any other type of case, but does not the defendant charged with a class ‘b’ misdemeanor enjoy the same basic rights and privileges as the capital defendant. (I cannot in good conscience or with any degree of intellectual honesty state that traffic offenses and other class ‘c’ offenses are the same as they are punishable by fine only and most can be readily expunged upon completion of a deferred adjudication probation.) However, the interests of the “system” seem to be outweighing the interests of the interests of the defendant.
I am an officer of the Court. I do owe an ethical duty to the system. But surely, my first duty must be to the client and their interests.
It is, in my opinion, a side-effect of this increasingly ‘cookie-cutter’ approach to the criminal justice system is that the defendant, the very person with whom we are charged (and hopefully compensated by) with representing, no longer treats with respect, fear, or awe the very system that has them in their thrall.
At its essential core, the criminal justice system is in the business of curtailing a defendant’s liberty. From the time a defendant is charged with a criminal offense, his or her freedom, his basic right to go where they choose when they choose is curtailed to one degree or another. At a minimum, they are commanded to appear in Court (or at least the hallway) for some period of time until their cases are “handled.” At worst, they are confined while their case is pending. The most common outcome of a criminal case fully involves the curtailing of a defendant’s liberty (as 95% of all cases resolve in plea bargains).
And yet, at least in my practice, the average defendant treats the criminal justice system with an alarming degree of disrespect. Is it a function of society? Probably. On the other hand, at least some of the cause can be attributed to the lack of formality that is present (at least at the Dallas County Courthouse).
I don’t know what the answer is. And I’m intellectually honest enough to admit that maybe this is just a pet issue of mine that few, if any, share. At some rate, however, I feel as though some of the really important elements of the practice of law and the representation of a defendant’s rights are being infringed, if not suppressed, by this lack of formality.
Formality is slow. Formality is often cumbersome. Formality often scares away those who are uncomfortable with being told where they are to stand, and how the Courts are to be addressed, and that there are specific rules to be followed. But formality protects. Formality ensures that rights are considered. Formality ensures that the defendant is made aware that the system takes their rights seriously, and that so should they.
Prior to the virtual democratic sweep of the Dallas County Courthouse, Governor Good-hair (Rick Perry) had appointed Becky Gregory to the vacant 283rd District Court. While I had strong disagreements with some of her rulings (as she was, in my ever-so-not-humble opinion ridiculously State’s oriented), I actually enjoyed the ‘federal’ approach that she took to the court. Was it slow and cumbersome? You bet. But, for that brief moment in time, the client knew that the judge, the prosecutor, and their attorney had all of their attention solely focused on their case. Did it have any effect on the defendant’s attitude? Probably not, but who can say?
The practice of law is not a manufacturing process. It should not boil down to “insert tab A into slot B.” It should be formal. It should be important. It should be slightly . . . mysterious.
However, in the words of Dennis Miller, “hey, I could be wrong . . . “
It has seemed to me, of late, that we as lawyers no longer impart to our clients – and apparently this failing also extends to Judges, Prosecutors, and Court Staff – the sense of formality, ritual, or “mystery” (as used in a quasi-religious context) to the criminal justice system.
Informality, in my opinion, allows and perhaps encourages a ‘slapdash’ approach to the practice of law. We (and as a mea culpa, I do include myself in this) negotiate terms and conditions of plea bargains ‘on the fly’ with Prosecutors in unsecure, semi-public workrooms in Dallas County. Very serious consequences are routinely discussed in casual, even flippant terms (I, myself, am perhaps more guilty than most of this). We (yup, still me too) admonish our clients of the consequences of waiving their fundamental constitutional rights in a period of time that is measured in minutes, if not seconds.
As I was writing some of these words, I was in court observing a plea and sentencing for a defendant’s case that is at least a 2nd degree felony drug crime. The defendant was standing with his attorney in front of the judge giving testimony. The prosecutor was leaning against the witness stand. (Again, these are things that I myself have done routinely.)
Perhaps the court system is overcrowded. Perhaps the system would break down if every case were treated with the kind of formality that is required both by ethical standards and by statute for capital cases. Granted, the possible consequences of a capital case far eclipse any other type of case, but does not the defendant charged with a class ‘b’ misdemeanor enjoy the same basic rights and privileges as the capital defendant. (I cannot in good conscience or with any degree of intellectual honesty state that traffic offenses and other class ‘c’ offenses are the same as they are punishable by fine only and most can be readily expunged upon completion of a deferred adjudication probation.) However, the interests of the “system” seem to be outweighing the interests of the interests of the defendant.
I am an officer of the Court. I do owe an ethical duty to the system. But surely, my first duty must be to the client and their interests.
It is, in my opinion, a side-effect of this increasingly ‘cookie-cutter’ approach to the criminal justice system is that the defendant, the very person with whom we are charged (and hopefully compensated by) with representing, no longer treats with respect, fear, or awe the very system that has them in their thrall.
At its essential core, the criminal justice system is in the business of curtailing a defendant’s liberty. From the time a defendant is charged with a criminal offense, his or her freedom, his basic right to go where they choose when they choose is curtailed to one degree or another. At a minimum, they are commanded to appear in Court (or at least the hallway) for some period of time until their cases are “handled.” At worst, they are confined while their case is pending. The most common outcome of a criminal case fully involves the curtailing of a defendant’s liberty (as 95% of all cases resolve in plea bargains).
And yet, at least in my practice, the average defendant treats the criminal justice system with an alarming degree of disrespect. Is it a function of society? Probably. On the other hand, at least some of the cause can be attributed to the lack of formality that is present (at least at the Dallas County Courthouse).
I don’t know what the answer is. And I’m intellectually honest enough to admit that maybe this is just a pet issue of mine that few, if any, share. At some rate, however, I feel as though some of the really important elements of the practice of law and the representation of a defendant’s rights are being infringed, if not suppressed, by this lack of formality.
Formality is slow. Formality is often cumbersome. Formality often scares away those who are uncomfortable with being told where they are to stand, and how the Courts are to be addressed, and that there are specific rules to be followed. But formality protects. Formality ensures that rights are considered. Formality ensures that the defendant is made aware that the system takes their rights seriously, and that so should they.
Prior to the virtual democratic sweep of the Dallas County Courthouse, Governor Good-hair (Rick Perry) had appointed Becky Gregory to the vacant 283rd District Court. While I had strong disagreements with some of her rulings (as she was, in my ever-so-not-humble opinion ridiculously State’s oriented), I actually enjoyed the ‘federal’ approach that she took to the court. Was it slow and cumbersome? You bet. But, for that brief moment in time, the client knew that the judge, the prosecutor, and their attorney had all of their attention solely focused on their case. Did it have any effect on the defendant’s attitude? Probably not, but who can say?
The practice of law is not a manufacturing process. It should not boil down to “insert tab A into slot B.” It should be formal. It should be important. It should be slightly . . . mysterious.
However, in the words of Dennis Miller, “hey, I could be wrong . . . “
Tuesday, September 04, 2007
Westmoreland's Rules of Practice
A Work in Progress and in No Particular Order
I.
THE POWER OF THE WRITTEN WORD
If it isn’t written down, it never happened.
II.
ABSOLUTE TRUTH:
Be true to yourself, Be true to others. Excepting areas of confidentiality & privilege, be as open and honest as is possible.
III.
PLAN YOUR WORK, WORK YOUR PLAN
As much as is possible, be deliberate and be proactive. Reactive thought and action lead to carelessness, and carelessness leads to mistakes.
IV.
EXPECT DELAYS
Nothing in this world moves as quickly as you would want or would like: Everything takes longer than you think it should.
V.
IT TAKES A VILLAGE . . .
Where possible, ask for help. When possible, give it in return
VI.
COMMUNICATE & COLLABORATE
Client communication is key: A client who gets talked to is a client who won’t complain.
VII.
DEMAND EXCELLENCE
But realize that you can only demand it from yourself, you can only ask for it from others.
VIII.
THE IMPORTANCE OF RITUAL
Where possible, when possible, seek routine. Routine allows for natural rhythm, and, depending on personality, maximizes efficiency
IX.
ETIQUETTE’S LIMIT
Make no apology where none is called for.
X.
YOU’RE ONLY HUMAN
It is simply impossible for everything to receive equal attention at all times. Accept this. Deal with it. That said, knowledge and management of tasks and their placement on the urgent / importance axis will allow you to maximize your efficiency.
XI.
THE FORTRESS OF SOLITUDE
Build in ‘recharge time’ into your life. For me, it needs to be regular and away from the city.
XII.
CLOTHES MAKE THE MAN
The sad fact is that people’s opinions of lawyers and how lawyers should act are largely based on what they see on dramatic television. Therefore, dress, speak, and act accordingly. This does NOT mean that you run around saying “Denny Crane” to people. However, this is a profession, and you should at all times appear, speak, and act professionally.
XIII.
UNDER-PROMISE, OVER-PERFORM:
Clients will latch on to even the most innocuous of commitments that you give them, and even the most minor of broken commitments will create conflict between you and the client. Therefore, be vague and general in your promises, but exacting and specific in your performance. Delivering on your commitments and more will only enhance your reputation with the client, and will therefore greatly enhance their likelihood of paying you!
XIV.
IT’S NOT PERSONAL, IT’S BUSINESS
Clients, generally speaking, like frank talk about fees. Be explicit, be professional, and demand to be paid what you are worth. The sad reality is that not every potential client can afford to hire you. Taking a case for less than what you deserve, or worse, less than what you need, will only create stress and conflict between you, the client, and the court.
XV.
IT’S NOT PERSONAL, IT’S BUSINESS (again)
Carrying a client who refuses to pay according to whatever terms of a payment agreement have been worked out is not worth your time, generally speaking. Failing to pay the attorney with whom they have entrusted their particular legal problem is a clear sign of just how much (or how little) value they put on the issue.
XVI.
IT’S NOT BUSINESS, IT’S PERSONAL
Obviously, keeping the preceeding rules in mind, you cannot expect the client to put paying you above paying for the necessities – Food, Clothing, Shelter, and Transportation [this is a necessity, I don’t give a damn what that fool Maslow says] – but the client must understand that you are the first of the rest. Dinners out, the cable bill, even little Johnny’s birthday present should all come after paying the lawyer.
I.
THE POWER OF THE WRITTEN WORD
If it isn’t written down, it never happened.
II.
ABSOLUTE TRUTH:
Be true to yourself, Be true to others. Excepting areas of confidentiality & privilege, be as open and honest as is possible.
III.
PLAN YOUR WORK, WORK YOUR PLAN
As much as is possible, be deliberate and be proactive. Reactive thought and action lead to carelessness, and carelessness leads to mistakes.
IV.
EXPECT DELAYS
Nothing in this world moves as quickly as you would want or would like: Everything takes longer than you think it should.
V.
IT TAKES A VILLAGE . . .
Where possible, ask for help. When possible, give it in return
VI.
COMMUNICATE & COLLABORATE
Client communication is key: A client who gets talked to is a client who won’t complain.
VII.
DEMAND EXCELLENCE
But realize that you can only demand it from yourself, you can only ask for it from others.
VIII.
THE IMPORTANCE OF RITUAL
Where possible, when possible, seek routine. Routine allows for natural rhythm, and, depending on personality, maximizes efficiency
IX.
ETIQUETTE’S LIMIT
Make no apology where none is called for.
X.
YOU’RE ONLY HUMAN
It is simply impossible for everything to receive equal attention at all times. Accept this. Deal with it. That said, knowledge and management of tasks and their placement on the urgent / importance axis will allow you to maximize your efficiency.
XI.
THE FORTRESS OF SOLITUDE
Build in ‘recharge time’ into your life. For me, it needs to be regular and away from the city.
XII.
CLOTHES MAKE THE MAN
The sad fact is that people’s opinions of lawyers and how lawyers should act are largely based on what they see on dramatic television. Therefore, dress, speak, and act accordingly. This does NOT mean that you run around saying “Denny Crane” to people. However, this is a profession, and you should at all times appear, speak, and act professionally.
XIII.
UNDER-PROMISE, OVER-PERFORM:
Clients will latch on to even the most innocuous of commitments that you give them, and even the most minor of broken commitments will create conflict between you and the client. Therefore, be vague and general in your promises, but exacting and specific in your performance. Delivering on your commitments and more will only enhance your reputation with the client, and will therefore greatly enhance their likelihood of paying you!
XIV.
IT’S NOT PERSONAL, IT’S BUSINESS
Clients, generally speaking, like frank talk about fees. Be explicit, be professional, and demand to be paid what you are worth. The sad reality is that not every potential client can afford to hire you. Taking a case for less than what you deserve, or worse, less than what you need, will only create stress and conflict between you, the client, and the court.
XV.
IT’S NOT PERSONAL, IT’S BUSINESS (again)
Carrying a client who refuses to pay according to whatever terms of a payment agreement have been worked out is not worth your time, generally speaking. Failing to pay the attorney with whom they have entrusted their particular legal problem is a clear sign of just how much (or how little) value they put on the issue.
XVI.
IT’S NOT BUSINESS, IT’S PERSONAL
Obviously, keeping the preceeding rules in mind, you cannot expect the client to put paying you above paying for the necessities – Food, Clothing, Shelter, and Transportation [this is a necessity, I don’t give a damn what that fool Maslow says] – but the client must understand that you are the first of the rest. Dinners out, the cable bill, even little Johnny’s birthday present should all come after paying the lawyer.
Friday, August 31, 2007
I have . . . returned?
TRUTH
Ok, so I didn't exactly keep true to my word to try to update this . . . whatever it is. That said, I once again feel the -- what? A muse? A sudden drive? Desire? -- to restart this ever so modest attempt at commentary.
At its core, I suppose, its a small opportunity to see my words in print. As my birthday has come and gone, and I am now standing over the halfway point to 40, my soul calls for introspection.
Who knows? Maybe I will actually follow up this time.
More later . . .
Ok, so I didn't exactly keep true to my word to try to update this . . . whatever it is. That said, I once again feel the -- what? A muse? A sudden drive? Desire? -- to restart this ever so modest attempt at commentary.
At its core, I suppose, its a small opportunity to see my words in print. As my birthday has come and gone, and I am now standing over the halfway point to 40, my soul calls for introspection.
Who knows? Maybe I will actually follow up this time.
More later . . .
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