“For some reason when it comes to my indigent ghetto clients, it becomes easy to forget that people, including those who break the law, are complicated and often charming. That they too contain multitudes. Oddly, no one has trouble understanding the humanity of White crooks. We mythologize them all the time—Bonnie and Clyde, John Gotti, Carolyn Warmus—all are complex people we find ways to relate to and even admire. At the movies we cheer for Butch and Sundance, Scarface, or [the] Ocean's Eleven crew. The fact that John Gotti was a ruthless killer who wreaked havoc on far more lives than any of my clients ever touched never eclipses the public memory of him as big, handsome, and defiant. People loved Gotti's resistance to governmental authority. But put a Black face on Gotti and no matter how dapper a don he is, the press, the prosecutors, and the public only read menace. I've often represented people as "big," "handsome," and "defiant" as John Gotti, yet when I invoke the humanity of these faceless robbers and killers, it sends most listeners from the land of mere confusion to that of utter incomprehension. To this day, I wrestle with where this understanding goes off the rails. Fundamentalist Christians constantly speak passionately about seeing the possibility of redemption in everyone, and no one bats an eye. But make this same point in the secular context of the criminal justice system, and rather than praiseworthy piety it is head as liberal gibberish.”
—David Feige, Indefensible: One Lawyer’s Journey into the Inferno of American Justice, pg. 53–54,
“Every good law or case you study was once a dream. Every good law or case you study was dismissed as impossible or impractical for decades before it was enacted. Give your creative thoughts free reign, for it is only in the hearts and dreams of people seeking a better world that true social justice has a chance. Finally, remember that we cannot give what we do not have. If we do not love ourselves, we will be hard pressed to love others. If we are not just with ourselves, we will find it very difficult to look for justice with others. In order to become and remain a social justice advocate, you must live a healthy life. Take care of yourself as well as others. Invest in yourself as well as in others. No one can build a house of justice on a foundation of injustice. Love yourself and be just to yourself and do the same with others. As you become a social justice advocate, you will experience joy, inspiration and love in abundant measure.” ― Bill Quigley ”
—The Yale Law Journal Online - The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct
yalelawjournal.orgA fabulous Essay from Yale Law Journal:
On March 29, 2011, the Supreme Court—by a vote of five to four—overturned a $14 million jury verdict in favor of John Thompson, a Louisiana man who spent fourteen years on death row because prosecutors withheld exculpatory blood evidence from his defense attorneys. Thompson had sued the Orleans Parish District Attorney’s Office based on a failure-to-train theory, arguing that the office had denied him due process of law through its deliberate indifference toward the need to train its attorneys in proper disclosure procedures. Thompson’s failure-to-train theory relied on Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to share evidence with defendants in criminal cases when that evidence is “material either to guilt or to punishment.” The Connick Court, in an opinion authored by Justice Thomas, disagreed with Thompson’s argument. According to Justice Thomas’s majority opinion, a single Brady violation—i.e., a one-time failure to disclose “material” evidence—is insufficient to establish liability on a failure-to-train theory.
Emphasis added for one of the many reasons I drink at night.
“Leo Branton Jr., a California lawyer whose moving closing argument in a racially and politically charged murder trial in 1972 helped persuade an all-white jury to acquit a black communist, the activist and academic Angela Davis, died on April 19 in Los Angeles. He was 91.”
—Leo Branton Jr., Activists Lawyer, Dies at 91Stuff a first lawyer at a startup should do
- Take a deep breath. You’re part of building something awesome now!
- Realize you need malpractice insurance, then get malpractice insurance. No, really, do that now.
- Get a handle on corporate records, particularly making sure you have fully executed copies of everything; I highly recommend making records electronic, keeping them in the cloud and keeping local backups. If you’d like suggestions on implementing this, email me.
- Make sure everyone knows you’re there so they copy you on any legal issues, particularly contracts.
- Figure out your computer situation and get used to using a Mac (even though you’ve been a PC person for 20+ years, cough); make sure you have Microsoft Office regardless, as all lawyers, everywhere, use it for everything. Consider bootcamping or VMWare for the sole purpose of using Workshare to compare documents [I still haven’t done this yet, but am kicking it around].
- Connect early and often with outside counsel, as you’ll be using them frequently [this one was easy for me because I just came from outside counsel and the Gunderson NYC team is awesome]. Also, evaluate all of your outside counsel needs overall, e.g., you may want to have litigation counsel ready in case anything comes up.
- Get to know everyone at work (<3 y’all), especially people who are going to be sending you contracts frequently.
- Stay organized, particularly as to lists of contracts you need to edit/review, and appropriate timelines.
- Realize you’re completely overwhelmed, but damn excited to be there.
I really haven’t gotten past (9) yet, but that’s what working weekends is for.
Back to Town
Hello! This past week Lipperism was (once again) resident in San Antonio, Texas for depositions.
Although I can’t say that anything like this happened at my depositions, here is a classic clip of a deposition gone awry - involving legendary Texas trial lawyer Joe Jamail.
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
—Abraham Lincoln, Lecture Notes, in 2 The Collected Works of Abraham Lincoln 81, 81 (Roy P. Basler ed., 1953).So today we went to the state prison with work...
things are going well, we’re in our last quarter of hearings for the morning WHEN ALL OF THE SUDDEN,
THE POWER GOES OUT!
All of the big metal doors in and out of the visitation/courtroom area are dependent on electricity. We can’t get out without a special override key. Then the A/C goes out (we’re in Arizona!). When the genetrator kicks in, it only powers on the Pepsi vending machine (cool? priorities?) in the back of the room. I’m actively trying not to freak out but like:
We were trapped inside an all-male prison! AAAH!
(and then 10 minutes later the power came back on and we calmy exited the building. I tried my best not to wildly fist pump when leaving the last set of doors)
File under Things of interest mostly to my own industry
The NY Times broke the shocking story that law schools don’t really teaching lawyering.
Did you catch my sarcasm there?
Who needs lawyering when the law is so fascinating? I’m all down with that, really. I had no idea it would be as cool as it was. I wouldn’t trade the seminars with Burt Neuborne and Joseph Weiler for anything. I have fond memories of skipping out on class to attend a legal symposium in which all the kool legal philosophers (Kathleen Sullivan, Liam Murphy-man I had such a crush on him and his accent) shot out their theories at Ronald Dworkin and he rebutted with no prep time. What a thrill!
That’s not sarcastic. Especially the crush on Liam Murphy.
But at the end of the day, I feel awful when a friend asks for advice on how to deal with her landlord and I have to say, sorry bro, school didn’t teach that. Or how to file a lawsuit. Or what on earth is involved in discovery. Or how to read or write a contract.
Those are, it turns out, useful skills.
Thank God that first thing out of law school I got a job I didn’t want, a job for which I put on a happy face but which felt like a failure, because it had nothing to do with any of my high brow ideals: no human rights, no international treaties, no poor people.
But that job taught me how to write a damn good contract.
Even though, as the Times reports,
“the academy wants people who are not sullied by the practice of law … [a] lot of people who are good at big ideas, the people who teach at law school, think it is beneath them.”
The exceptions are those who teach legal clinics, which are programs where students learn to counsel clients (usually poor), draft documents and even litigate, all under faculty supervision… .
But a lot of these programs struggle with a kind of second-class status …
And even though, as a grad of top tier schools down the line, I’m supposed to be hyper-conscious of status. And even though it makes me angry that so many of the elite profs are men, and part of me wants to climb that ladder just to be a woman who made it to the top …
What I really want is to teach eager, passionate kids to draft damn good contracts. Transactional skills for social justice, that’s the goal. I’m going to be a second class pioneer. Who wants to hire me?
I affirm.
Well, I am officially a lawyer! Yesterday the Judicata team went over to the James R. Browning Courthouse, where Alex Kozinski, the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, swore me in to the California Bar. (Or did he? Technically, I affirmed an affirmation instead of swearing an oath. More on that in a bit.)
First, we got a private tour from Kathleen Butterfield, one of the Court’s staff attorneys. The Courthouse is, in a word, incredible. I think that most of what we saw is open to the public during the Court’s bimonthly public tours; if you’re near San Francisco, please, take my advice and attend one. (You might ask if or when Kathleen is leading a tour—she is terrific.)
Some highlights:
(1) So much Italian marble it makes the Hearst Castle look budget:
(2) The bar—literally. Before law schools existed, would-be lawyers would study the law under another lawyer’s supervision. Getting admitted to the Bar involved standing behind the bar with your sponsor and fielding a bunch of questions from the judges. Get enough right and you’d be permitted to—wait for it—literally pass the bar.
(3) The bullet hole from the Hindu-German Conspiracy Trial. In 1918, not five feet from where we held our ceremony, a defendant shot and killed his co-defendant and was then promptly shot to death by a U.S. Marshal. (Amazingly, no mistrial occurred; everybody was found guilty the next week.) You can still see the damage caused by one of the bullets when it hit the judges’ bench—check out the aberration in the tilework, just to the right of the seam in the marble:
After the tour, we hung out in Courtroom One until Judge Kozinski freed up.
After the Judge came in and met the rest of the team, I asked if he’d mind if I chose to affirm rather than to swear. Legally, there’s no difference. Swearing is traditionally perceived to have a religious component to it, whereas affirming is completely secular. This is a pretty mainstream option—the U.S. Constitution explicitly follows every “Oath” with “or Affirmation,” and the official California Bar incantation reads “swear (or affirm)”—but I’d bet that it’s seldom exercised. (Of all my lawyer friends, I know just one who affirmed, and we had discussed it beforehand.)
Why would anyone be so fussy? Naturally, atheists or radically liberal First Amendment zealots tend to be quite interested in keeping things as secular as possible. But even theists have their reasons:
> But I say unto you, swear not at all: neither by Heaven, for it is God’s throne;1
> But let your communication be ‘yea, yea’ or ‘nay, nay’; for whatsoever is more than these cometh of evil.2
Personally, I chose to affirm because (a) I could, and (b) it seems cooler. Presumably, some of our forefathers argued long and hard to win for us the right to affirm. Why not throw them a cosmic wink? Plus, if it was good enough for Franklin Pierce, it’s good enough for me.
Of course, the Judge was cool with it, and we got it done:
Afterwards, we sat down at the Appellant’s table to chat about Judicata and legal technology. For those of you who don’t know, Judge Kozinski is a pretty tech-savvy guy. After we discussed Judicata’s version of man-machine symbiosis, he dialed back the clock and dazzled us with stories about when he used to program in Fortran on IBM punch cards.
The night ended with dinner at a nearby restaurant. Naturally, the Judge and the whip-smart Ninth Circuit clerks that joined us were delightful company.
I’d like to thank Judge Kozinski and everybody at the Court who made our visit especially memorable yesterday!
