The Legal Underground

An Interview with Ted Frank of Overlawyered.com

Editor's Note: A few weeks ago, Ted Frank of Overlawyered.com announced that he was leaving the law firm of O'Melveney & Myers for a 'dream job' at American Enterprise Institute for Public Policy Research, where he'll manage the thinktank's litigation-reform work as director of the AEI Liability Project. When I heard Ted's announcement, I thought it would be interesting to inquire a little further. Ted was kind enough to answer the following questions in an e-mail exchange. --Evan Schaeffer

On Overlawyered, you described your position with AEI as your "dream job." Why?

There probably aren't a lot of college kids who voraciously consume their subscriptions to the National Review and the New Republic, look at the two-line biographies of the policy analysts doing think pieces, and say "I'd like to be doing that," but I was one of those people. I was notorious on campus for writing a prolific number of op-eds for the school paper and for a couple of political magazines. It got to the point that I was sufficiently frustrated with the infrequency of their publication schedules that a bunch of friends and I took over a dormant left-wing magazine that was sitting on an office and a pile of student funding, but couldn't get anything done because it was organized as a collective. We turned it into a functioning organization publishing a centrist magazine, and I taught myself how to do layout so that I could help get it out the door and I'd have someplace else to write.

And now I have the opportunity to play the sort of role that I admired in college and do it at a thinktank that's perhaps the best in the business, surrounded by great thinkers in the forefront of their fields and a squad of bright research assistants. Just in the first week of May, AEI sponsored seven programs, including talks by Richard Posner, Lawrence Silberman, Tyler Cowen, Lawrence Lindsey, and Camille Paglia; that's just a wonderful environment to be in, and I'm not even changing my Metro stop to go there.

It's worth clarifying that I have several other dream jobs, like Article III appointee, Solicitor General, or game show host. Some are more plausible than others; the Yankees' third-base slot looks to be locked up for a while. But when it comes to dream jobs, it's important to make a decision and commit to it. I learned that lesson from a woman I dated who jumped from network tv executive to memoirist to med student to dot-com executive to sitcom writer to radio commentator and back again a couple of times, even achieving a measure of fame and recognition in each of those positions. She had several lifetimes' worth of dream jobs, yet she was one of the unhappiest people I've ever known, because she was always dwelling on the roads she wasn't taking. The status anxiety of successful people is just a fascinating subject that hasn't been explored enough; it amazes me that John Adams went to his grave worrying that he'd be unfavorably compared to Thomas Jefferson.

Will you miss the day-to-day grind of litigation? What will you miss about it?

I think what I liked most about litigation was doing research, thinking, and writing on knotty issues, and I certainly liked that enough that I was prepared to spend the rest of my life doing litigation to keep doing that. So I'm fortunate in that I'll get to keep doing that four blocks away.

I've gotten to visit twenty different states and a bunch of places I'd never would've gone because of litigation I've done. I would miss that, too, but hopefully I'll get a chance to talk at some law schools.

I've worked for some great law firms doing some cutting-edge cases: on average of once a year, I got to learn about an industry—hotels, TV set-top boxes, office supply retailing, ammonia pipelines, wine corks, Indian gaming, seismic retrofitting—inside and out as part of some litigation or the other I was doing.  I invariably found that part of the job fascinating. I don't know what sort of consulting opportunities will present themselves while I'm at AEI, but I imagine that I'll end up missing that aspect of litigation, though I'm not sure that that qualifies as part of the "day-to-day grind."

I can amend that to add that, forty-eight hours out from my last day, I'm suffering blackberry withdrawal symptoms.

Cardinal Law and the Benefit of Clergy

by Abnu, a former altar boy, who writes about interesting names on Wordlab

Anyone who witnessed the state funeral of Pope John Paul II, and the election of Pope Benedict XVI, must admit some heightened awareness of the influence of the sovereign Vatican. Heads of state from around the world—from all religious affiliations—came to show their respect. The political power of the papacy was palpable. It must have been really something in the Middle Ages.

The "benefit of clergy" is the exemption from the jurisdiction of the secular courts, which in England, in the Middle Ages, was accorded to clergy. Historic laws respecting the benefit of clergy are discussed at length in Blackstone's Commentaries, if you can read olde Englifh. The concept is described in the Catholic Encyclopedia, in the vernacular. Both are interesting, especially for lawyers and priests.

The privilege of benefit of clergy was entirely abolished in England in 1827, by Statutes 7 and 8 Geo. IV, c.xxvii, sect. 6. In the colonies it had been recognized, but by Act of Congress of 30 April, 1790, it was taken away in the federal courts of the United States. Traces of it are found in some courts of different states, but it has been practically outlawed by statute or by adjudication. it is now universally obsolete in English and American law.

While absolute monarchs, democratic legislatures, and common law judges have long since abolished ancient laws recognizing that the Church alone has supreme legal authority over its clergy, some religious find the exemption is still in the Bible.

Psalms 105:13 When they went from one nation to another, from one kingdom to another people; 14 He suffered no man to do them wrong: yea, he reproved kings for their sakes; 15 Saying, Touch not mine anointed, and do my prophets no harm.

De facto, sovereign authority over alleged crimes of clergy may still exist in the most secret laws of the Church. Cardinal Law might not be above the law—just beyond the laws of the United States of America.

According to recent press reports, Pope Benedict XVI faces new claims he had 'obstructed justice' after it emerged he issued an order ensuring the church's investigations into child sex abuse claims be carried out in secret.

The letter, 'concerning very grave sins', was sent from the Congregation for the Doctrine of the Faith, the Vatican office that once presided over the Inquisition and was overseen by Ratzinger.

It spells out to bishops the church's position on a number of matters ranging from celebrating the eucharist with a non-Catholic to sexual abuse by a cleric 'with a minor below the age of 18 years'. Ratzinger's letter states that the church can claim jurisdiction in cases where abuse has been 'perpetrated with a minor by a cleric'.

The letter states that the church's jurisdiction 'begins to run from the day when the minor has completed the 18th year of age' and lasts for 10 years.

It orders that 'preliminary investigations' into any claims of abuse should be sent to Ratzinger's office, which has the option of referring them back to private tribunals in which the 'functions of judge, promoter of justice, notary and legal representative can validly be performed for these cases only by priests'.

'Cases of this kind are subject to the pontifical secret,' Ratzinger's letter concludes. Breaching the pontifical secret at any time while the 10-year jurisdiction order is operating carries penalties, including the threat of excommunication.

[...]

The Ratzinger letter was co-signed by Archbishop Tarcisio Bertone who gave an interview two years ago in which he hinted at the church's opposition to allowing outside agencies to investigate abuse claims.

'In my opinion, the demand that a bishop be obligated to contact the police in order to denounce a priest who has admitted the offence of paedophilia is unfounded,' Bertone said.

Most lawyers, today, have a hard time understanding this thinking, though it seems clear to ecclesiastical scholars. Lawyers are concerned with crime and punishment, while clergy are concerned with sin and redemption. As long as the Church views sexual abuse of children by clergy as a moral failure, a breach of the vow of chastity, even a cardinal sin, it is a matter for confession, penitence, forgiveness and absolution.

Weblogging with a Co-Blogger: Are You Ready to Take the Plunge?

by Mike Cernovich

Blogging is fun. Friends are fun. Therefore, blogging with friends is three-times the fun. Not so fast. Whether you blog by yourself or with a co-blogger is a big decision. It was the right decision for me, but before you decide whether it's right for you, let's look at some pitfalls.

What if you don't like your co-blogger's writing style or choice of topics? What if your co-blogger is a first class bore, or worse, is boorish? You might have to part ways to save your reputation, because others will judge you based on the company you keep, including the bloggers you write with.

A friend who recently dissolved a law partnership described it as "half fratricide, half suicide." Although kicking someone off your blog isn't as extreme as divorcing, winding down a partnership, or breaking up with an S.O., it is an emotion-filled event. Essentially you're telling someone, quite likely a friend or colleague, that you do not want to work with him. Feelings will inevitably get hurt. Rejecting your friend as a blogger might harm other parts of your relationship. Why harm your friendship if, to save it, all you need to do is blog in your separate space.

But you're thinking, "I know Joe.  He's a cool guy, so there's no reason we'd need to dissolve our blog."  Hold on a second.

Oh Yeah, It's Over for Law Review

 by the Anonymous Editor of Blawg Review

Just as weblogs have had a huge impact on mainstream media, bringing down rather pompous network news anchors and discredited journalists from fake news agencies, law blogs are providing critical analyses of topical legal issues that are changing how we look at Law Review.

What the hell is law review, anyway? Let's start with the basics. Law reviews are academic legal journals that publish articles by law professors, judges, lawyers and even law students. If you think that sounds boring, you are so right. Check out this sampling of recently published articles: "Textualism and the Equity of the Statute" (Columbia Law Review), "The Legal and Institutional Preconditions for Strong Securities Markets" (UCLA Law Review) and "Preventing Insider Misappropriation of Not-for-Profit Health Care Provider Assets: A Federal Tax Law Prescription" (Washington Law Review). Just imagine the soporific torment of those poor souls who actually had to read those articles. Grab a cup of coffee to wake up and we'll continue... Why do I care? Law review is important because working on one will help you land that job where they throw buckets of cash at you every week. "You gain skills through law review (and through every journal) that employers like for you to have," said Morgan [co-editor-in-chief of the Berkeley Women's Law Journal and member of the California Law Review]. "You learn editing skills, how to support a legal argument, actual legal research and writing skills. It also shows a commitment to something rigorous that demands a lot of your time. Employers are impressed by that." In other words, employers assume that if you were willing to spend hundreds of hours hunched over piles of footnotes, you will be even more willing to spend thousands of hours hunched over piles of documents when someone is actually paying you for it.

While making big bucks at BigLaw was once the highest career objective of aspiring law students, the Internet has changed all that. Anonymous Lawyer bloggers, who might not even be lawyers yet, can get a book deal from blogging. Law Professors, who used to write law review articles, are rebelling against traditonal Law Review attitude problems with copyright protection and are insisting on reserving some rights under creative commons licenses afforded them by blogs. And at least one activist judge is eschewing Law Review, too, preferring the freedom of the blog to the oversight of law review editors. In his recent article in Legal Affairs, the magazine at the intersection of law and life, Judge Posner excoriates Law Review noting, inter alia:

I have spoken thus far of the law reviews as publishers of scholarly articles submitted to them. But in addition, of course, they publish articles (usually and misleadingly called "notes" or "comments") written by the members of a law review's staff. The opportunity to publish provides valuable experience. This, plus the rising quality of law students, may explain the enormous increase in the number of law reviews—law schools that used to have just one now often have two and sometimes three or four. My only criticism of the student-written portions of the law reviews is that the students have a propensity to write about "hot" subjects, like partial-birth abortion, gay marriage, and capital punishment, to the neglect of equally important commercial subjects that cry out for informed doctrinal analysis.

They'd all really rather be blogging. So, the time has come to announce Blawg Review, the next big thing in blogging for lawyers, law professors, judges who blog, and law students who'd rather make a name for themselves than make law review. How can everyone get involved?

• Submit great posts from your own law blog for publication on Blawg Review, which is hosted on a different blog every Monday.
• Host an upcoming issue of Blawg Review on your own incredible law blog. Evan Schaeffer is hosting "Blawg Review #1" on Notes from the (Legal) Underground on April 11th. Kevin Heller is hosting "Blawg Review #3" at Tech Law Advisor, and others have already signed on for subsequent issues. Reserve a date for your blawg review, now!
• Write a review of a blawg for publication on Blawg Review. Maybe someone will review yours.
• Add a link to Blawg Review on your blog and spread the word throughout the blogosphere, especially when your own fantastic posts are reviewed for all to see.

Life is a carnival; take a second look at Carnival of the Vanities, Carnival of the Capitalists, and Grand Rounds where the medical profession up and joins the circus every week. Where's the law bloggers' carnival? Let's show the blogosphere what's really happening at the intersection of law and life these days—and who the heck are these interesting legal professionals who blawg.

Depression, The Lawyers' Epidemic: How You Can Recognize the Signs

by Raymond P. Ward

Depression is a dangerous disease, and lawyers are more prone to it than members of any other profession. Consider these numbers:

A 1990 study at Johns Hopkins University found that of 28 occupations studied, lawyers were the most likely to suffer depression, and were more than 3.6 times more likely than average to do so. A Harrison Barnes, Builders and Destroyers (citing W.W. Eaton, J.C. Anthony, W. Mandel & R. Garrison, Occupations and the Prevalence of Major Depressive Disorder, 32 J. Occupational Med. 1079 (1990).

A research study of 801 lawyers in the State of Washington found that 19% suffered from depression. Barnes, supra (citing G.A.H. Benjamin, E.J. Darling & B.D. Sales, The Prevalence of Depresion, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers, 13 J. Law & Psychiatry 233 (1990).

A quality-of-life survey by the North Carolina Bar Association in 1991 revealed that almost 26% of respondents exhibited symptoms of clinical depression, and almost 12% said they contemplated suicide at least once a month. Michael J. Sweeney, The Devastation of Depression.

Left untreated, depression can be fatal. According to the National Institute of Mental Health, 15% of people with clinical depression commit suicide. Don P. Jones & Michael J. Crowley, "I wish I would have called you before...."  Surveys of lawyers in Washington and Arizona showed that most lawyers suffering from depression also have suicidal thoughts. Joan E. Mounteer, Depression Among Lawyers, 33 Colo. Lawyer 35 (Jan. 2004). One study found that lawyers have a much greater risk of acting on their suicidal thoughts and succeeding in doing so. Id. Suicide ranks among the leading causes of premature death among lawyers. Richard G. Uday, That Frayed Rope, Utah State Bar J., Aug./Sept. 2003 (citing Meyer J. Cohen, Bumps in the Road, GPSOLO, July/Aug. 2001, at 20). The 1992 Annual Report of the National Institute of Occupational Safety and Health reported that male lawyers are twice as likely as the general population to commit suicide. Lynn Johnson, Stress Management, Utah State Bar J., Jan./Fed. 2003.

The Trouble With Lawyers: A Post About Branding

by Abnu, who is not so stuffy when he writes for Wordlab

Lawyers don't have a clue about branding.

Some don't advertise at all. They're "too professional" they say. Others insist that, in order to be a successful professional these days, you have to run your practice like a business. Here's where it gets a bit fuzzy for most lawyers. They don't really know what business they're in.

Most lawyers think of the legal services they offer as the business. So, to them, running a law practise as a business means "selling" legal services, and advertising those services is a necessary evil—and necessarily evil. It's not surprising that lawyers who advertise their "services" often do a disservice to themselves, and the profession.

Believe it or not, most lawyers don't understand that the professional services business they're in is the business of the Trusted Advisor. Trust me, this book should be required reading for law students. It might be too late for lawyers.

In 2002, Robert A. Clifford, Chair, Section of Litigation of the ABA, put it in words a smart lawyer might understand.

We live in a world based on trust. Every day we are forced to trust strangers. We trust the school bus driver to get our children to school, the airline pilot to get us safely to our destinations, the hospital staff to administer the proper medication, the police officer to enforce the law, the other motorists not to drink and drive. Sometimes, though, we are let down. Lawyers are among those who can jeopardize trust, whether by not fully communicating the frailties of a case to the client or not being upfront about a fee. In any event, the lawyer becomes just another in a long line of those who do not follow through on a promise, and, with that betrayal of trust, however small, the entire profession suffers a bit.

Certainly lawyers are advocates for their clients, but, first and foremost, they are counselors. Maybe more than in any other profession, people turn to lawyers for their advice, their logic in seeing through a problem and perceiving issues, and their decision-making ability after examining all the options and likely consequences. Although consumers describe lawyers as greedy, manipulative, and corrupt, they also say that lawyers are educated, intelligent, knowledgeable, hard working, aggressive, outgoing, well spoken, and confident. These are traits they admire and even would like to emulate. It is on these virtues that those in need of legal services rely. On the basis of these strengths, each of us must formulate a plan to do our jobs better. We discussed and debated that very issue in the second part of the Town Hall Meeting April 25 in Faneuil Hall during the Annual Meeting. Public confidence in our profession is critical in doing our jobs right. We must live up to that great responsibility, and how we handle it is what distinguishes us as true professionals. Lawyers must earn the right to be trusted once again.

Lawyers, as a profession, will never gain the trust of the public as long as they continue in their business practices to advertise like car salesmen and political candidates and talk like pirates.

  

A Suggestion for Law Schools: Start A Public Interest Section for 1Ls

by Todd Chatman

Equal Justice Works, one of the leading voices for public interest legal education, is now gathering data from law schools for its first ever Guide to Public Interest Law Schools. This promises to be an invaluable resource to future law students as they try to cut through the many myths and mysteries surrounding the all-important choice of where to apply to and attend law school. As a current 2L who had to make that choice a couple of years ago, I know I had great difficult finding any sort of reliable data to compare schools with regard to their support for public interest law, so a "guide" to this aspect of law schools is sorely needed.

Unfortunately, I've heard on the grapevine that many schools (especially those that rank highest on the utterly awful USN&WR law school rankings) are reluctant to participate because they fear the guide will somehow suggest that their support for public interest law is weak. Leaving aside for the moment why these schools might worry they'll look bad in such an assessment, I'd like to encourage all law schools to fully participate in the future, and if you're in a position to do so, I ask you to do the same.*

In order to help these schools overcome their reluctance to participate in the new Public Interest Guide and to improve public interest legal education generally, I offer one simple thing law schools can do to seriously boost their support for public interest law (and thereby improve how they appear in the Public Interest Guide). Very simply, law schools should start a Public Interest Writing and Research Section for 1Ls.

Most law schools admit a large cohort of new students each year, which means most first year classes are huge--as many as 100 students or more in large lecture halls. But most schools also require students to complete a legal research and writing (LRW) course in their first year, and since teaching writing can be so labor-intensive for both student and teacher, most schools break these LRW classes into smaller sections. For example, GW (where I go to school) uses classes of 12-20 students who spend one hour/week with an "adjunct" professor (usually a practicing lawyer who teaches the class in addition to his/her real job), and one hour/week with a "Dean's Fellow" (a 3L who acts as a teaching assistant and mentor to help students master the finer points of legal research and citation and adjust to law school).

* The deadline for this year's survey was January 31st. According to Equal Justice Works, only 56 of more than 180 ABA-accredited law schools participated.

Twelve Ways Technology Can Make You a Better Trial Lawyer

By David Swanner

The tagline of my weblog is ‘Using Technology to be a better Trial Lawyer’. While I am a gadget freak, this does not mean that using gadgets and tech toys will make you a better trial lawyer. Matt Buchanan of Promote the Progress wrote a great post on gadgets are not the answer. Here are the Top 12 ways I feel that technology can make you a better trial lawyer:

1. Use Listservs to Stay on Top of the Law – As much as I love weblogs, I love listservs even more. The ability to send a single e-mail and have it go out to 500 trial lawyers in the state, is a magical thing. If you have questions on case law, insurance coverage, defense attorneys, experts, judges, practice management or just need to vent you can get answers.  For South Carolina trial lawyers the South Carolina Trial Lawyers Association listserv is great. In addition to your state TLA, check out the ATLA listservs and the San Antonio Trial Lawyers listserv which is considered one of the best in the country.
2. Use Weblogs and Internet Searches for Trial Techniques and Tips - Both Evan’s Illinois Trial Practice and my South Carolina Trial Law collect trial techniques and tips. There aren’t a lot of plaintiff oriented trial weblogs yet, but there are a lot of great articles on the internet from attorneys all over the country. If you don’t see Evan or I talking about what you want to know about, do a search for the information.
3. Use Software for Trial Preparation – Use programs like CaseMap to nail down the details of your case. CaseMap allows you to enter all of the people, places and things about your case. You identify the elements of your causes of action and then link your facts to the causes of action. You can then sort the information by cause of action to see exactly how you will prove each element, or by witness to produce an automatic witness outline to show what you will prove with that witness. Dennis Kennedy explains CaseMap in more detail in this ABA Law Practice Today article. For the more free-thinking minded (yeah, that’s common in lawyers) you can try MindManager mindmapping software. Promote the Progress and Inc. tell more about the mindmapping software.

A Law Student Explains How His Software Can Make Law School Easier

by Jasper Ward

Editor's Note by Evan Schaeffer:  For the most part, this is a non-commercial website. On the other hand, I have a history of pushing ideas I like, e.g., The Anonymous Lawyer, so I thought it would be appropriate to allow Jasper Ward, a 1L at Brandeis School of Law, to pitch his software product, which he allowed me to download and test. He's not paying anything to appear here, but I endorse his idea that law students themselves might have good ideas about how to make life as a law student easier.

I’m a 25-year old 1L at the Brandeis School of Law, University of Louisville. Evan has allowed me to post this guest column about how I use technology as a law student and how my experiences before law school helped me develop software that has been very helpful to me in school.

My generation has grown up with computers in every aspect of our lives. The technology grew up a little ahead of us, so that by the time we needed to do something, the computer had a tool for it. Adults knew computers had lots of tools, but they oftentimes use them wrong and actually make things more complicated. For instance, during my first week of school, we were introduced to three websites that professors could use to communicate with us. Each professor used a different site, and the school itself actually used a fourth site for announcements and information. It’s as if a dean had read an article that said online announcements were great ways to communicate with students, and figured that if one was good, three must be golden! But for someone our age, having to check multiple places for all the information we needed, instead of having it all in one place, was wildly foreign and inefficient. Which makes me excited when people our age design software. People who have grown up using existing software to make their lives easier will be much better at designing software for specific tasks that actually make other people’s lives easier as well.

Before law school, I worked on political campaigns doing research and communications. As late as 2001, one campaign I worked on was still literally cutting newspaper articles out of the paper, copying them, and placing them into a big filing cabinet. Finding an article from two weeks ago that you KNEW existed was hard. Finding general information that you weren’t sure was in those monster cabinets was nearly impossible. And that was just the news – campaign research offices also deal with legislative votes, contributions (mostly kept in spreadsheets or databases), financial information, web pages, text of bills, press releases – all sorts of information. So when you’d see a name and think, “where have I read that before?”, you had to check literally five sources of information.

Early Retirement: Short Fiction by Al Nye

Early Retirement

by Al Nye

Tuck carefully hung up his worn windbreaker on the hanger near the door while he called out for his wife, "Celine, I'm home!"  It still felt funny thinking of her as his wife; they'd only known each other for eight months and had married just 5 weeks ago.

He listened carefully for her cheerful response as he reached to unbuckle his shoulder holster.  Celine hated it when he wore his weapon in the house. He knew that being married to an undercover Special Agent for the Drug Enforcement Agency was difficult for her.  His job was the only source of friction between them.  She didn't want to be visually reminded of the danger he faced every day at work by having him carry a loaded weapon in their apartment.

And besides, he'd promised her that this was his last mission.

Just last week he'd arrested Jose Morales, the son of a high-ranking cartel member, and seized 900 pounds of cocaine in the SUV he was driving across the Mexican border.   As Tuck snapped the cuffs on him, Morales had cursed him and suggested that Tuck perform a sexual act with his own mother. Morales also vowed to get even with him.

"Do you even know who my father is?  You're going to pay for this Mister DEA man," he said, smiling with his mouth but not with his eyes, "you're going to really pay."