Most of the week I am so busy I can barely read all my friends posts much less get to mine. This past week I ran a mock Grand Jury presentment in a case that goes to the Grand Jury later this week, and of course handled the myriad of other cases in our office coffers. Finally we have a new attorney in the office trying her first case. I am trying to help her too. I hope by the end of this week I will get another trial practice post out to you all here.
Anyway, this is what kept my attention this weekend:
Blogging for fun and profit has taken on a real interest for lawyers. I have found it has really helped me get hits to my website and that in turn sends clients to our offices.
Blog related articles of interest can be found here,and here.
I liked this cause of action though I am not sure that there will be recovery after the default verdict. Hope I get the chance to bring one of these on behalf of an injured or fallen soldier. It would be an honor.
Evan Schaffer has some instructions for jury selection over at his trial practice blog
Evan also notes the trouble prosecutors are having in the Milbank Weiss case in getting convictions. It seems that it is hard to convict when you don't have a case. Anyway the government is blaming the usual suspects: Lawyers. Check it out here at Evan's other blog. (Two blogs... He is my hero)
Here is a really good primer on what a Public defender is. I especially liked the last paragraph on how we can defend "those" people. Check it out. Hattip to Skelly over at Arbitrary and Capricious. Dave Feige is steamed (and that's an understatement) over at Indefensible where a NY Times reporter clearly shows she doesn't understand what we do or why we do it. Maybe she should read Skelly's blog more often.
New Jersey is trying to limit peremptory challenges but fortunately the plaintiff's bar is stopping it. I wish the criminal defense bar could show the commitment the plaintiff's bar shows. Point of Law Blog hates the plaintiff's bar, but they did put me onto the story here.
This article bodes well for NY (and Long Island) Solo and small firm practitioners. My Shingle discusses the study here.
Speaking of Solos, check out this post and the cited article on the guy Vice President Cheney accidentally shot. He's had a great career. I have been thinking about the latest Washington tempest in a teapot and I have decided that I would rather go hunting with Cheney than driving with Ted Kennedy. Hattip to Michelle Malkin for the concept.
Thinking of taking on a civil rights case? Better read this post before wading into the water. A story with a moral: Never depend on Congress to be fair. I think they need to see the posts cited in the paragraphs above.
DWI Blog has an excellent post on how a breath testing machine can give a false positive on a substance other than alcohol. I had a case one time where the defendant blew a .20 and swore he drank nothing. Turned out he had been using paint and paint thinner all day. Read this post and learn what the prosecutor doesn't want you to know about breath testing. Now maybe you will understand why I think DWI cases can be won!
Professor Berman wants to know what to make of the SCOTUS silence on the previously argued death penalty cases in this post.
Finally I have been busy looking at our New Nassau County District Attorney Kathleen Rice. So far I am not really impressed. Read about it here.
Later this week (with any luck) I will write about prepping for trial.
Sunday, February 19, 2006
Sunday, February 12, 2006
Mary Conn's BLawg: Criminal Law and Bluegrass, What a Combination!
Mary Conn is an long time friend and a helluva great lawyer. Formerly a lawyer in Texas she has relocated to Northern California. She is practicing trial law and is a well known lecturer who was Board Certified in Criminal Defense while living in Texas. She is concentrating her practice in Federal/State Criminal law, Family law, and general Trial work. Mary can try a case!
I am looking forward to Mary's wit and dry sense of humor as well as her insight into cases and life. Not only that, but she is also blogging about her love of bluegrass music!! This promises to be a fun and informational blog and I can't wait for her posts. You can visit with Mary here, or visit her soon to be revamped
I am looking forward to Mary's wit and dry sense of humor as well as her insight into cases and life. Not only that, but she is also blogging about her love of bluegrass music!! This promises to be a fun and informational blog and I can't wait for her posts. You can visit with Mary here, or visit her soon to be revamped
Thursday, February 09, 2006
The NACDL MidWinter Meeting in Charleston S.C.: Renovating the Way We Practice Law
NACDL Midwinter Meeting: Renovating The Way We Practice Law
I am in beautiful Charleston, S.C. for the NACDL Midwinter meeting and I am excited. First of all I am going to be seeing a lot of old friends from around the country. All of them are tough and aggresive criminal defense lawyers. Somehow being all in one place and sharing our stories brings a certain relief and relaxation for me.
I am also excited because there is going to be some really great CLE and I will be bringing you the best of what I see. I will not see all of it because NADCL offers two tracks at each seminar on the first day and one plenary session on Friday. I will be going back and forth and give you what I see from track one: Creatice Trial Techniques and track two: The Business of Law.
Now of course I am most excited because I will be speaking at 2pm on a panel called "Advertising That Works And Doesn't Work." I will be focusing on site building and blogging.
I will try to bring regular updates throughout the day, and tomorrow so stay tuned. IF you happen to be in South Carolina try to get here. It's gonna be fun.
I am in beautiful Charleston, S.C. for the NACDL Midwinter meeting and I am excited. First of all I am going to be seeing a lot of old friends from around the country. All of them are tough and aggresive criminal defense lawyers. Somehow being all in one place and sharing our stories brings a certain relief and relaxation for me.
I am also excited because there is going to be some really great CLE and I will be bringing you the best of what I see. I will not see all of it because NADCL offers two tracks at each seminar on the first day and one plenary session on Friday. I will be going back and forth and give you what I see from track one: Creatice Trial Techniques and track two: The Business of Law.
Now of course I am most excited because I will be speaking at 2pm on a panel called "Advertising That Works And Doesn't Work." I will be focusing on site building and blogging.
I will try to bring regular updates throughout the day, and tomorrow so stay tuned. IF you happen to be in South Carolina try to get here. It's gonna be fun.
Sunday, February 05, 2006
The Girl In The Cafe: On The Need To Be A Bull In The China Shop
I studied International Relations as an undergraduate at Tufts University. I was intrigued by its academic rigor and the hope for the world that it provides (in theory). I was mystified by the way diplomacy was conducted. I was living in a liberal world and I was a conservative vold warrior. I was energized by Pat Moynihan who was willing to call out the Russians while the US Ambassador to the UN and I was not "Diplomatic" as many of my classmates were. I was seen as a "hawk" and a "bull in the China shop". Not diplomatic material in a staid world of international diplomacy. I was called "jingoistic" because of my unbridled position "My country right or wrong." Of course that was before President Reagan showed us all what it meant to be an American. I am perfectly good with criticism of my country from within it. In fact I think such criticism is part of being a good citizen. I will not however take it easily from some outsider who has no idea what it means to even be an American. So naturally I became a trial lawyer.
I have been enjoying the HBO Film "The Girl In The Cafe" which is technically about the "needs" of the worlds rich nations to forgive the debt and energize the poor nations of the world. It is set at a G8 Summit. The comedic part of the movie is how a British "commoner" gets into the summit and calls out the stuffy diplomats, using the plain talk and basic understanding of "the people." I am not writing to endorse or criticize the politics of the film. Rather I want to teach the power of the example it sets in the behavior of the commoner: the "Girl" in the cafe. Our usual Juror.
One of the lessons in the movie is the importance of making even the most difficult issues bite size and understandable while keeping them compelling. A second and even greater challenge is the need to acknowledge the "elephant in the room" in other words drop the veneer of Political Correctness and say exactly what needs to be said. It is both funny and painful to watch the Bigwigs in the film squirm when put on the spot by the "Girl's" simple questions. They don't want to give the simple answer which (in the film) is "we don't have the will to rid the world of poverty."
Now forget the political message of the film, and imagine a courtroom. The "Girl" is asking simple leading questions to which the only answer is "because we don't want to." However that answer is devastating to the position of the proponent of the answer. They try to evade it, by complicating it. She keeps asking the simple question. They say it is not that simple. They suggest she is dangerous because she has too little knowledge. She suggests too much knowledge keeps them from seeing the real problem. She keeps asking and soon enough everybody has to acknowledge the "Elephant in the room."
This happens in court all the time. Often we are just too polite to call out someone that needs calling out. I had a judge who was well known for turning his back on the jury when he gave the reasonable doubt jury instruction. No one knew what to do about it. He was a really cantankerous guy to begin with, and few young lawyers (or old ones for that matter) wanted to take him on, fearing losing the jury. One day while dishing about it at our local watering hole, we decided that the jury, the spectators, and God could see just what he was doing. The only people who wouldn't know about it were the judges of the appellate court. We decided that we would put it on the record the next time he did it. Not at side bar, but right there in front of everyone. He denied he was doing it for the record and he yelled and screamed at the lawyer but, he didn't turn his back on the jury when he gave the charge on any case where the lawyer had called him out on it. Just as it was uncomfortable to watch the "Girl" in the movie make social faux pas after faux pas, it was uncomfortable to have to call out this judge. It was also the only way to force the issue.
In Vior dire I see this failure to acknowledge the "elephant in the courtroom" a lot. For example: not wanting to offend, the defense attorney tells the jury they are going to hear some rough language on tapes and coming from the mouths of witnesses. Can they still give the defendant a fair trial even though they may believe he said some of those things? The jurors all say yes expecting to hear the venacular, the usual cuss words. Then a black juror hears the defendant refer to a black girl as a N---er ho, and he cannot forgive the defendant and the guy goes down because the juror was not faced with the fact he was going to hear the infamous "N word." Everyone in the trial knew the word was coming. It was the elephant in the courtroom. It has to be acknowledged.
Acknowledging the elephant in the courtroom is a way to make the jury believe in you. They do not understand much of what we are doing or why we do it. When we dance around the issues and do not go right for the point they realize we are either afraid of it, don't know it, or worse. It gets them off point and it allows the another player in the trial to misdirect their attention. Learning to deal with the unpleasant stuff upfront will make you the more trusted and believable advocate.
I have been enjoying the HBO Film "The Girl In The Cafe" which is technically about the "needs" of the worlds rich nations to forgive the debt and energize the poor nations of the world. It is set at a G8 Summit. The comedic part of the movie is how a British "commoner" gets into the summit and calls out the stuffy diplomats, using the plain talk and basic understanding of "the people." I am not writing to endorse or criticize the politics of the film. Rather I want to teach the power of the example it sets in the behavior of the commoner: the "Girl" in the cafe. Our usual Juror.
One of the lessons in the movie is the importance of making even the most difficult issues bite size and understandable while keeping them compelling. A second and even greater challenge is the need to acknowledge the "elephant in the room" in other words drop the veneer of Political Correctness and say exactly what needs to be said. It is both funny and painful to watch the Bigwigs in the film squirm when put on the spot by the "Girl's" simple questions. They don't want to give the simple answer which (in the film) is "we don't have the will to rid the world of poverty."
Now forget the political message of the film, and imagine a courtroom. The "Girl" is asking simple leading questions to which the only answer is "because we don't want to." However that answer is devastating to the position of the proponent of the answer. They try to evade it, by complicating it. She keeps asking the simple question. They say it is not that simple. They suggest she is dangerous because she has too little knowledge. She suggests too much knowledge keeps them from seeing the real problem. She keeps asking and soon enough everybody has to acknowledge the "Elephant in the room."
This happens in court all the time. Often we are just too polite to call out someone that needs calling out. I had a judge who was well known for turning his back on the jury when he gave the reasonable doubt jury instruction. No one knew what to do about it. He was a really cantankerous guy to begin with, and few young lawyers (or old ones for that matter) wanted to take him on, fearing losing the jury. One day while dishing about it at our local watering hole, we decided that the jury, the spectators, and God could see just what he was doing. The only people who wouldn't know about it were the judges of the appellate court. We decided that we would put it on the record the next time he did it. Not at side bar, but right there in front of everyone. He denied he was doing it for the record and he yelled and screamed at the lawyer but, he didn't turn his back on the jury when he gave the charge on any case where the lawyer had called him out on it. Just as it was uncomfortable to watch the "Girl" in the movie make social faux pas after faux pas, it was uncomfortable to have to call out this judge. It was also the only way to force the issue.
In Vior dire I see this failure to acknowledge the "elephant in the courtroom" a lot. For example: not wanting to offend, the defense attorney tells the jury they are going to hear some rough language on tapes and coming from the mouths of witnesses. Can they still give the defendant a fair trial even though they may believe he said some of those things? The jurors all say yes expecting to hear the venacular, the usual cuss words. Then a black juror hears the defendant refer to a black girl as a N---er ho, and he cannot forgive the defendant and the guy goes down because the juror was not faced with the fact he was going to hear the infamous "N word." Everyone in the trial knew the word was coming. It was the elephant in the courtroom. It has to be acknowledged.
Acknowledging the elephant in the courtroom is a way to make the jury believe in you. They do not understand much of what we are doing or why we do it. When we dance around the issues and do not go right for the point they realize we are either afraid of it, don't know it, or worse. It gets them off point and it allows the another player in the trial to misdirect their attention. Learning to deal with the unpleasant stuff upfront will make you the more trusted and believable advocate.
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