My Legal Hero Wins Another One

Congratulations are in order (again!) for attorney Jeff Fisher, who won yet another case in the Supreme Court of the United States. The high court handed down its opinion today in Melendez-Diaz v. Massachusetts, ruling that lab reports are testimonial under the Confrontation Clause. Despite the fact that the decision was pretty clear under the Court's holdings in Crawford and Davis, the Court took over seven months to issue a decision, waiting until the conclusion of this term.

Which leaves one to ponder - what the heck took so long to issue this opinion? After the Crawford decision, which basically held that the Sixth Amendment actually means what it says (you have the right to be confronted with the witnesses against you), the question of whether you can have trial by affidavit in a drug case is a no-brainer. I suspect the practical effect of the decision was part of the reason it took so long to utter it - this means the State will actually have to call witnesses and prove its case. Shocking. Horrendous. And constitutionally required (pesky constitution!).

Jeff Fisher is one of my legal heroes. By age 33 he had argued and won two of the most groundbreaking criminal procedure cases to come along in a while, Crawford and Blakely. I met him at a conference once. I got to shake his hand. I got to tell him he was my legal hero. And I got to hear him laugh at me (not in a mean way - in addition to being an amazing lawyer he's also a nice guy). Hats off to him for continuing to shape confrontation law in a way that remains true to the spirit and purpose of the Sixth Amendment.

What a Relief

So, some days slogging through all of the little tasks on cases can be a bit mind-numbing. At times like those, I try and remind myself of the bigger picture and the payoff that comes from noticing details. You know, hum something patriotric and picture the Constitution in my head. Or take a mental break for a few minutes and surf the internet or check email.

I'm on a number of list-servs, which include some really smart people (and, of course, a corresponding number of really dumb people as well). As I was working through my afternoon to-do, this precious bit appeared in my email inbox from one of my wittier list-serv mates:

"Finding myself unwilling to do real work this afternoon, but unable to admit I'm lazy and simply go home, I turned the Webb County Jury charge into a blank form. I now will share it with the list." Attached was a jury charge on the newly enacted castle doctrine, which strengthened the self-defense law in Texas. My thanks to my refreshingly honest and altruistic list-mate for sharing - and validating that I am not the only one who has those kind of afternoons.
Castle%20Doctrine%20Jury%20Charge.pdf

Finding My Inner Chuck Norris

So, as part of my "get a life outside the law" plan, I actually went out this weekend to have some fun. On the agenda was a bit of shopping I needed to do - which led me to a great discovery. While in the store, I stumbled on a Chuck Norris poster that lists a number of facts that all fellow humans should know. Here's a sampling:

- Chuck Norris does not mow his yard. He stares at the grass and dares it to grow.

- Chuck Norris has a vacation house. On the sun.

- The dinosaurs looked at Chuck Norris the wrong way. ONCE.

- Chuck Norris can divide by zero.

- Chuck Norris can eat just one Lays potato chip.

And so on and so on . . . you get the point. Despite the fact that I am almost 30 years old, it took a great deal of restraint not to snap that thing up right there (ok, I admit it, I'm still thinking of going back for it). The only thing that held me back was where could I put this thing in my apartment without people knowing? Which leads me to my next genius thought - the Chuck Norris meditation. Insert your name instead of Chuck Norris in each of these sentences and you too can feel a sense of superpower welling up in you. I'm thinking it would be a great meditation before going into court. And I'm also thinking I'm going back for that poster.

The Business Side of Law

I detest writing this post because I was trained by a generation of lawyers who said law is a profession, not a business. That being said, every lawyer must learn how to set and collect fees or go the way of the academic. As a younger lawyer (and probably older lawyer too), this can be a difficult balance to strike. You want to help people who need help; you also want to keep the lights on. I take a certain number of pro bono cases each year, and have enjoyed them immensely (one guy hugged me and offered to come change a flat tire for me whenever I get one). The downside is that people you help for free like to refer other people who would like free services. Oops.

My recent challenges in this arena have resulted in what I will call the top 3 biggest misconceptions about lawyers and money. Unfortunately, I hear them frequently enough from clients that I know (and dread) that it's really happening:

(1) Myth: "So and so lawyer said if I paid X amount of dollars, they would get the case dismissed." FACT: WOW. I'm pretty sure that guaranteeing a client an outcome is a violation of ethics rules. How the case ultimately works out is based on the facts, the lawyer's skill, and the prosecutor with whom you're dealing. Any lawyer who guarantees an outcome for some outrageous fee has just guaranteed you one thing - you shouldn't trust them.

(2) Myth: "Can't I just pay some additional money and you talk to the judge/prosecutor and make this go away?" FACT: File this one under "great ideas that are actually a felony." Buying off judges and prosecutors may make a good Grisham novel; unfortunately, it rarely works in the real world and will put you (and your lawyer) in a world of hurt. Again - UNETHICAL, illegal, and not the strategy you want to take. Avoid the lawyer who advises you that this is a sensible course of action - a fifth grader could tell you that it's not.

(3) Myth: "If I pay you more money, can you get a better offer?" FACT: Again - Wow. That's so offensive. I'm working hard on your case for the fee agreement we discussed. If the offer we're getting is not all that great, I'm going to guess it has something to do with the facts or the 5 prior convictions the prosecutor is taking into account. When it comes to getting the best outcome for a client, most of the lawyers I know are motivated by a non-monetary concern for their client's welfare. If your lawyer needs that additional $500 to get motivated, time to start looking for someone who took their oath seriously.

I don't mean to sound Pollyanna or naive about this, nor to gripe endlessly about it. There is a business side to the practice of law - but for the lawyer you want handling your case, it shouldn't be all about business. 'Nuff said.