-The Docket-

[captain_jay_conrad]

I figured I would put up a little journal recording some of the stranger events that I have seen working in the courtroom with my boss. (Since I’m still waiting on bar results....two weeks of sheer hell, but much drinking shall be had, no matter what the results of that test).

Anyhow, to give a little background, I went to law school out of my home state, and finished in May of 2011. I took the bar once in February, and missed it by one question. (cool, I know; but hey, having had no Texas law in law school, to come that close on the first try wasn’t too shabby. But unlike horseshoes, in law; being close doesn’t count).

Back on to the purpose of this little journal. I want to record some of the stranger, or more humorous sights of the court house, because it could potentially bud into ideas for stories, but mainly as a way to laugh at some of the insanity that I see. Honestly, there’s never a time when I’m up at the County Courthouse where something funny doesn’t happen.

So, let’s start off with the interesting exchange I witnessed today!
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It was approximately 8:00 A.M., a time when the County Courthouse is usually rather empty. However, on this fine morning it was bustling. People were going in and out of the courtroom. Some juror was complaining that the judge didn’t allow chewing gum in his court room...never mind the fact that this juror didn’t have enough teeth to practically chew the gum; and some other esteemed gentlemen was asking why his pocket knife wasn’t allowed into the courthouse.

Needless to say, the poor sheriff’s deputies, who have to put up with this herd of people every morning, have remarkable skills. I honestly tip my hat to them. For starters, they never get angry at getting asked the same useless questions time and again. Secondly, they develop a sense of humor with it all. Finally, they have the patience to stand there for hours on end, and remain cheerful, for the most part.

Despite this, one cannot say, with a clear conscience, that this line of work would be anything but boring. It’s not like the federal courthouse, where the marshals stand there, eagerly flashing their badge and 9 mm Beretta; in the hopes that one of the high-profile criminals does something stupid, so they can empty an entire magazine into them.

No, most of the criminals that funnel through the county court are those fine individuals who get caught stealing underwear from Walmart. (I didn’t know one could steal $12,000 worth of underwear from a single Walmart...but my boss’s clients proved to me otherwise). These poor deputies sit in this one-hundred year old building, in the stifling heat, to hear people ask where the family court was, and then some mention about child support, hand guns, and threats to her Chihuahua’s life. (Ah, sweet divorce!)

Thus, it should come as no surprise that these guardians of the temple of justice (or cesspit, if you’re a cynic...trust me, I know I am), should develop a colorful sense of humor. I had just finished getting our local Walmart shopper, er shoplifter, registered on the docket sheet, and was going down to the first floor to call her name. (We have to announce a client's name three times, if we haven’t rendezvoused with them before their scheduled time in court). While I’m down there I just happened to look over at the metal detector, where I saw one of the bailiffs, from the courtroom, emerge from the elevator and hand a new dress code sheet to the deputies standing guard.

“What the hell is this?” I heard the deputy moan, as he took the laminated sheet of death into his hands. They always hate getting paperwork like this. It means that they have to start informing the gaggle of people of these new instructions...which is bad enough when that gaggle of people didn't listen to the instructions already given to them in the first place.

The Bailiff smiled, a sarcastic little smile, and quickly rebuffed the deputy’s complaint stating, “Don’t blame me, blame the judge...he didn’t think you guys were working hard enough.”

She turned around and started to ascend the staircase, back to the second floor. As she was doing this, the deputy pulled out his “clicky” pen from his pocket, aimed the writing end towards her, and started clicking the pen, all the while, loudly making fake gun sounds from his mouth.

“PEW PEW PEW!”, He went on. I was doing my best not to laugh at this point. He turned and saw this young associate grinning his head off. He nodded his head acknowledging the fact that I had witnessed his “display”, and stated with a grin of his own.

“Don’t worry, she’ll feel it...Those are deadly rounds...It just takes a while to sink in!”

I couldn’t help but laugh at that point. I only wish airport security could be this entertaining. Heaven knows they must see the same kind of bizarre crap that we see coming into the courthouse. The only thing is, I don’t think the TSA uses the same pink handcuffs our bailiff uses. (When I say pink handcuffs, I mean hot pink handcuffs. Kinky, I know, but not when the judge is a doddering old man.)

 

[captain_jay_conrad]

Today is a sad day for the courthouse in my town, a sad day indeed! Surely, for me to claim that it is a sad day for the legal community of my town, this must be an important issue; such as prison overcrowding, or some other horrible miscarriage of justice...alas, I’m a scum sucking lawyer, not some wonderful philanthropist, with people’s well being as my motivational force.

NO! the sad event has to do with the facade of the regal dome serving as the capstone to our fine county courthouse. For you see, the design of our courthouse looks strikingly similar to that of the United States Capital building. We have the same kind of dome. Of course, situated on top of that dome is sweet, blind, (and perhaps vengeful) lady justice. Then, ringing the lower part of the dome are elegant eagles with their wings stretched out towards the heavens.

Well, 59 years ago, a terrible tornado struck our downtown, and the only damage the courthouse managed to sustain was the loss of one eagle. It was swept from it’s majestic podium, and shattered into a thousand pieces on the ground. Now, our county is anything but wealthy; and time was of the essence, so they had to find a replacement for the noble bird which was once perched upon the stately dome.

The problem was, no one in the area had an eagle statute large enough, or the proper color to fit the courthouse; but having a gap in the eagle protection ring might leave lady justice open to the ravages of some unknown terror...so a solution was reached. That solution? Why, placing a statue of a duck, in the same regal pose as the majestic eagles.

This flying waterfowl of justice proudly took his place among its usual predators. He lifted his wings to protect lady justice from all the quackery one might encounter in the courthouse. He stood his ground for 59 years...but, today, the dome was finished being renovated, and the heartless government officials removed the grand duck of justice...and replaced him with the now utterly common eagle.

So, this is my heartfelt farewell to the majestic duck of justice, who defended lady justice so beautifully for well over half-a-century. While he has been relieved, his memory will not be forgotten, for surely no bird is better suited for the halls of justice, than a duck.

 

[captain_jay_conrad]

Oh the joys of criminal defense work. If it’s not one thing, it’s another. The client is always right, unless they’re wrong; which in my case seems to be nine out of every ten times. I get a call from the office today, they want me to review the police video for some guy who was pulled over for DWI and DWLI (the first one of course most everyone knows is driving while intoxicated, the other is driving while license invalid).

I pull up the video, and not only has the client admitted that he had 2 cases of beer, as well as a bottle of tequila, he inquires as to whether the officer wants to purchase some methamphetamine off of him. The best part is, why he was pulled over by the police in the first place...He was driving the wrong way on the freeway.

Needless to say, I don’t think we’ll be able to get much of a plea offer for this guy. But, we may be able to get something, since the jail is overcrowded. Gotta love court appointed clients!

 

[captain_jay_conrad]

I'm actually frightened. I found my old tort law professor's page...and he actually has a picture of a shark on it. Granted, I know we lawyer folk are despicable scum, to such a degree that even Shakespeare lacked king things to say of us. I mean, look at Robespierre in the great terror of the French Revolution...never before had an anti-capital punishment attorney, who was anti-war...used both war and execution to his ends more potently than Robespierre. (ah, hypocrisy!)

However, my tort law professor could fit into neither of those categories, nor could he be classified as clever enough to truly have some innuendo behind the shark on his website. Perhaps the fact is to cover up for the reason he didn't teach at the school my second year...(Apparently getting drunk, and sexually assaulting students doesn't get law professors brownie points...it did get him fired, or the fact that he took a prostitute to the barristers' ball...honestly, I should probably base an rp character off of him, to be the scum of the earth...it would fit.)

It's been four years since I went through the hell of his class...but it still haunts me. Well all of that first year still haunts me. In many ways the paper-chase was accurate...except for the fact that none of the professors had sexy young daughters for me to have a sordid love affair with. (sigh, damn you Hollywood, you ruin my expectations again ;_; ). All I can say is, I'm glad it's over with; I don't think I could do it again if I had to...and if I did have to, I swear I'd sue someone for making me do it again.

 

[captain_jay_conrad]

Well, as of this afternoon, I am happy to announce...I passed the bar exam this time around...I'm officially subhuman blood sucking scum now!

 

[captain_jay_conrad]

The County Court has come up with a brilliant new scheme, involving court appointed defendants, who also happen to be vacationing in the County Jail! This new scheme involves a court appointed defense attorney, the District Attorney's office, a grumpy judge, and some extremely bored jail staff. So, what's the scheme?

Why, it's called wasting the tax payer's dollar, the lawyers time, the judge's patience, and the jail guards..well hell, they do what they always do, sit there. Anyhow, in the past, when an attorney was appointed to a client, spending quality time at the slammer, a simple letter was sufficient enough to “make contact”. However, in its infinite wisdom, the County Court decided to change the rules of the game.

The new rules state that the lawyer has to go physically down to the jail and have an initial consultation with the vacationing defendant, within 72 hours of receiving notification of appointment. Okay, normally that's all fine and well; however, during this time, the prosecution hasn't filed anything. Thus, we don't know what they are offering, or even the extent of the crime that the client is charged with.

That's wonderful, it means the attorney has to drive to the jail (located in another city too, fantastic!), wait for the guards to check to see that the attorney shouldn't be a fellow guest at the resort; and then meet with the client, only to say the following:

“Hello there! I'm your new attorney, the court has appointed me. That being said, I don't know what they're charging you with, what plea offer is on the table, or even when you're scheduled for trial. Until I have those things, I can't get you out of here. Okay, pleasure meeting you, enjoy your stay!”

Of course, the clients don't usually like the accommodations of the resort known as “County Jail”; and they don't like the fact that you have no information for them. But hey, they're not paying for our services, they've got court appointed attorneys!

Thus, it is completely inefficient, completely pointless, and it just means we get to go out there to be yelled at. Perry Mason never had it so well!

 

[captain_jay_conrad]

My my, it sure has been a long time since I wrote anything here. As usual, real life responsibilities got in the way. I suppose, one could say that the most tragic aspect of being an adult is the inability to silence the constant nagging of our conscious mind. With all the pleasures accompanying adulthood, the simple truth that our fantasies are finite and temporary by their very natures, serves to distract, and some how diminish the pure escapism of our younger days.

Indeed, during the Medieval Period, when faced with drastically shortened life-spans, thanks to the horrific presence of the "Black Death"...the philosophers of the age began to realize that not all aspects of wisdom were necessarily good. They penned their thoughts, coining a phrase which has haunted me, ever since I first laid eyes upon it..."With age, man becomes wiser, yet great wisdom coincides with great sorrow."

Wisdom and sorrow, both are cut from the same stone. Like opposite faces of a coin, they are inexorably linked, and one brings the other. Perhaps the fluidity of human life brings this notion into a keen focus for me. I'm not a particularly gloomy soul, yet, I realize―to a much greater extent now―that the sands of time continue to work against me. All of the sudden, a question races through the mind...did I ignore important moments of my life, in my haste to achieve my goals?

It's a fair question, and one in which each soul must find their own, individual answer. Yet, certain aspects of any task which is remotely worthwhile, requires that we sacrifice for the goal. Wisdom brings sadness, for the reason that with wisdom, we realize that we are unable to have it all. Grandiose ideals of the past fade by the wayside, as we settle for the more practical and realistic aspects of our life. As things sometimes don't go our way, then the constant worrying over the drudgeries of every-day life hamper, to varying degrees, the powerful creative force of the imagination.

Yet, despite all of this, it remains necessary to seek an escape from the mundane and ordinary. For where we surrender our creative spirit...therein madness ensues. So, what in the hell does this all have to do with my long absence from recording my thoughts here? Simple, really, job security, and financial worries. When I entered law school, nearly six years ago now, the schools proclaimed a wide array of promises, that looking back on it now, I should have realized didn't carry the weight of truth. But, there was one truth that reigned supreme in those days. Pursuing a professional degree assured some sense of job security.

For generations this notion proved true. People will always fight, thus, people will always need lawyers. Yet, when looking at the way things have been going, since the economic downturn, it's not always true that people "need" lawyers. And, necessities will always trump perceived necessities. That is, the fights are shelved, as food and other important factors of subsistence take center stage.

Oh, how the bitter truth of the economic developments remained blissfully absent from my mind during the hellish three years of my "mental transformation." I was astute, and paid close attention to the lessons taught in those three lost years. With great hope, I placed myself through the great misery that accompanies the form of any post-graduate level work. In the end, to be swamped with debt, and little real avenue to pay it off, as the legal field―at least in my neck of the woods―has few opportunities for advancement past the part-time, or "pro bono" stage.

Yet, there's a reason why I'm not bitter about this. Through all the hell, an important, undeniable skill imprinted itself upon me. The ability to more thoroughly, and concretely record my thoughts in writing. I dabbled with role playing and prose before law school. However, my mind would trip over itself, in attempting to convey itself, through the mechanical motions of my fingers.

I made large conclusions, or jumped in a narrative, thinking that the reader was able to keep up with my mind...not realizing, that I must paint a complete picture for the reader to truly enjoy the words flowing like paint strokes upon an artist's magnum opus. Without the color of a full fleshed idea, how does a reader truly share the passion of the author?

I learned that lesson the hard way. An alien form of writing, which seemed like Dr. Seuss on steroids―No, Sam I am, I do not like green eggs and ham...green is a color found in the spectrum....ham is a type of food...food is consumed for energy...etc.―forced itself upon me through a painful course of trial and error. (Not to mention painful grades). But, by the end of my three year journey, I realized something.

I realized that my character development improved, that major plot holes no longer littered most of my writing, even when I wasn't fastidiously double checking my work. (That's not to say that some plot-holes didn't remain. Rather, I mean that the overall instances of the bastards was greatly reduced.) Thus, with the sadness which came with the wisdom I gained, I also discovered that there is some real joy that comes with wisdom.

The philosopher's of old were shaped by their environment. Death, pain, sadness, and sorrow all plagued the Middle Ages. Sadness was a state of being. Now, it's more of a metaphor. A reference to learning from our mistakes. I don't think the lessons I learned were mistakes. Yes, I made plenty of mistakes along the way. Rather, I think my sadness comes more from the fact that I realize a care-free way of life is over. Still, I wouldn't trade my experiences for the world.

 

[captain_jay_conrad]

There's one thing that I have learned about the legal profession, which is a major irritant for me. During my years at law school, the professors always attempted to instill in each of us, that law, as a profession, must be client oriented. What the professors meant by this is simply that, as lawyers, each and everyone one of us were supposed to act with the utmost integrity towards our clients, and even opposing counsel. Of course, such notions are rather Utopian in their outlook and are thereby unobtainable in the real world. However, I am nevertheless bothered by the fact that many, in the actual practice of law, never even attempt to make that Utopian dream a reality.

It's as though a heavy dose of cynicism and narcissism reign supreme for a vast majority of those figures within the legal profession. What's truly unfortunate about this reality, is that it reinforces the negative stereotypes the general public holds with regards to the legal profession. And, it's tragic in the sense that many good an decent people, who truly need help, are left disillusioned, as their attorney attempts to take the easy way out, because he/she loathes the thought of putting in the extra work, because there's a greater chance that the case cannot win, because the client never dotted their "i"'s or crossed their "t"'s.

But, when one really thinks about it, the expectations of these practicing lawyers becomes unrealistic in and of themselves, for the simple fact that no one in the real world lives with in the rigid boundaries that the legal profession attempts to force upon the rest of society. Thus, lawyers attempt to tell everyone else that the decision making process should be one based wholly upon logic; but, then those same attorneys exercise decision making, and screening a prospective client, based upon an wholly illogical system. In it's own right, this process is perhaps the most disgusting aspect of the profession in which I work.

I know it may seem clichéd to say this―but I became a lawyer,for the very reason that I wanted to help people. My parents are both surgeons, and I witnessed how destructive the plaintiff bar can be. I viewed myself as taking the proactive step of learning "the hated trade", in order to protect all people whom I felt were abused by the system. Yet, now, I see a completely different side of the picture. I suppose the theme of my last post inches its way back into relevancy within this topic, in that perhaps you could say that I'm sadder but wiser.

What I mean is, I now see people who have really been harmed by the intentional actions of another, who wields more influence―whether via money, physical size, or what have you―and no assistance becomes available to them, because the lawyers are afraid to act, because they're more concerned about their status in society overall, than they are in upholding the oaths they swore upon being admitted to the bar. I'm not wholly innocent of this myself. No one can live up to these Utopian principles...but I would like to think, at the very least, that I strive to achieve as many of these lofty goals as possible.

The legal system has become something it was never designed to be in the first place. Initially, the courts were devised as a system of last resort. The purpose was to return a harmed individual to the state―monetarily speaking―that they were in, before the harm happened. But, over the course of development for our legal system, something changed. The impetus of the entire process shifted away from a system of last resort, and of balance. Rather, the legal system evolved into some grotesque and monstrous tool which unscrupulous souls use as either or lottery ticket, or to settle the score in a long running vendetta. Personal animus was never supposed to be part of the adversarial system.

But, how could the system avoid becoming what it did? Anything that has an adversarial nature to it, will at some point, delve into the realm of personal animus, unless there are tight controls in place, designed to prevent just that. However, lawyers have been lax in their job of self-enforcing the various codes of professional conduct. Any self-policing system runs the risk of raising the ire of those who are not within the guild. However, in the case of law, this is made even worse, by the fact that the attorneys go after various other professions which adhere to a similar sort of "self-policing" policy which they adhere to in their own disciplinary system.

This sort of hypocrisy is undeniable, it's tragic; and worst of all, it encourages hatred of attorneys. Another old cliché, often thrown around by the public loosely, is a line from Shakespeare's Henry VI―"First, we must kill all the lawyers"―most, today, use that as a reference to the fact that lawyers were hated even back then. However, the true meaning behind Shakespeare's words there is that...if you want to have society crumble, you must first kill all the lawyers. Even today, parts of this would be true. Without the scumbags like me around, the state could arrest anyone for any capricious reason. Corrupt businessmen could seize land, property, and business opportunities from others, without any ramification.

Nevertheless, attorneys have done a poor job of catering to the public of whom they serve. We haven't communicated our purpose well enough, despite the fact that communication is the most significant, and important aspect of a lawyer's career. I come to this site to help improve my writing. I'm wholly convinced that one never truly "perfects" their writing. Rather, writing, by its very nature is a process that most always be honed, and will continue to gradually improve, but can never be perfected. In that sense, writing and law are the same. A clear cut definition for law can never truly be achieved. Law is amorphous. It changes, as the needs of society change. It is constantly being refined, rebuffed, and polished...but it will never be perfect, nor will it ever be complete.

So, to ensure that I continue to have my words flow in a logical fashion, yet also retain a touch of emotion and humanity within them, I delve into rps, displaying my emotions, hopes, and dreams...within the expressions of my characters, or descriptions of scenes. Believe it or not, a lawyer must be a story teller. He or she must be able to weave a concrete picture with words, whether oral or written, which coaxes the jury to emote. Many have called this process manipulative. But it isn't. All it is, is a form of roleplay. To recreate the events of a certain happening, to relive it in front of the jurors, so that they might make up their mind as to what has happened. Indeed, in the American legal system, at least, the jury carries a substantial amount of power. They are known as the "Finder of Fact", meaning that if the jury determines that the sky was green, and a purple tornado destroyed the business next to the night club by fire...then by God that's what happened, at least according to the law.

Yet, to convince a jury of this, a lawyer must have a powerful ability to weave a story that connects with the members of the jury. In other words, the lawyer must be a fantastic role-player. And for that reason, I find this site to be a God-send to me. Not only does it help me relax, and unwind from the confounding nature of law, which causes my blood to boil, but it also allows me to sharpen my instincts, to help me improve upon my ability to connect with jurors, and to help represent someone to a much higher standard than otherwise. Most lawyers do not practice this skill, and it shows. I myself have fallen flat in this respect several times. Nevertheless, I have noticed the gradual improvements of my connections with not only the jury, but also my own clients.

Therefore, I want to take a moment here to thank every partner who rped with me, you...on a personal basis, availed the opportunity upon me to improve my craft, and I'm eternally grateful for it. To all of the role-players on this site, whom I have never interacted with, or at least haven't interacted with yet...I still want to thank you, because by keeping a community like this alive, you are allowing me to better my skills. In that sense, we are all working towards improving this world in our own individual ways.

Self expression is such an important aspect of the human condition. Communities like this allow that to flourish, and it helps to ensure that each individual has a way to grapple with his/her own personal struggles. Escapism is a powerful tool, but this site provides more than a mere mechanism of escape. It is a thriving, colorful, diverse, and open place. And, for all of that, I truly love it! Thank you all for helping make life a bigger adventure than it would be otherwise!

 

[captain_jay_conrad]

•A discussion of privacy rights in an Internet Age•

If there is one aspect of the law which should matter the most to an active and vibrant online community, like the one found here at Blue Moon, it is the issue of online privacy, and the scope and extent to which certain information should only be given to the government, after the authorities have gone through the proper legal channels of procuring and executing a proper search warrant. This sort of mindset has been with us since the United States was founded some two-hundred thirty-eight years ago. And, similar such notions have been adopted by various other nations throughout history. Continuing on with the nation's laws that I understand best, as I was trained in them―The United States―I think it is important to explore some of the historical reasoning behind the development of our Constitutional protections, before examining whether such protections are still reasonably applicable today.

During the Philadelphia Convention of 1787, the Founding Fathers debated over whether a need existed to develop a “Bill of Rights”, which were inalienable, or more appropriately stated unalienable. That is, whether individuals were endowed by right of birth with certain rights and freedoms which the government cannot arbitrarily take away from the citizenry. We know this Bill of Rights today as composing the first ten amendments to the United States Constitution, and which had been further strengthened by the drafting and ratification of the Thirteenth (aboilition of slavery), Fourteenth(Equal Protection and Due Process as extended to the several states), and Fifteenth (right to vote) Amendments after the American Civil War; and, the Nineteenth Amendment (right to Woman's suffrage―voting rights) in 1920.

Each one of these amazing rights, on their own, have merited vast and voluminous study and examination. Indeed, entire academic pursuits have been dedicated to each, in their own right. However, for purposes of the point I wish to study here, the following Amendments are the ones I shall narrow my examination to: (1) The Fourth and Fifth Amendments (rights against unreasonable searches and seizures, and the right to not be forced into self incrimination, right to notice and a hearing―Due Process); (2) The Sixth Amendment (right to face one's accusers, and right to speedy and public trial in front of a jury of one's peers); and, (3) The Fourteenth Amendment. (Rights of Due Process―as extended to the governments of the several states―and Equal Protection).

I combined the Fourth and Fifth Amendments here, because in criminal proceedings, they operate in such a fashion that it is all but impossible to separate them in any meaningful manner. During the Revolutionary War, Great Britain possessed a similar notion of “Due Process” as contained in the Fifth, and later, the Fourteenth Amendments. That is to say, that an accused citizen must be afforded notice of the alleged crimes with which he or she is charged, and he or she must be afforded an opportunity to a hearing, in which the citizen has the right to contest those charges. However, the British system at the time did not afford the citizen a right to a specified warrant, supported by oath or affirmation, demonstrating probable cause, that the accused most probably committed the offenses of which he or she currently has been charged. That right is specifically found in the Fourth Amendment's Warrant and Probable Cause clauses. Furthermore, the British system of the time also did not avail the accused with the right to face his or her accusers in a court of law, in front of a jury of his or her peers, as found in the Sixth Amendment.

These days, Americans practically take these rights for granted. We know very little with regards to the horrors of general warrants―warrants that allow the search of an individual's entire home, business, person, papers, or effects...based on no specific charges (as per the Fourth Amendment). In other words, being charged with a mere suspicion of a crime―and secret courts, where our fates could be determined by a single appointed judge―and a judge who is not appointed by an elected official...eliminating any connection to the will of the people―who only hears the prosecution's side of the story (in violation of the Fifth, Sixth, and Fourteenth Amendments), as in the old Star Chamber Courts of England. We understand that we have the right to an attorney, even when we cannot afford such representation, and we know that we have a right―at least in cases of felony charges―of being indicted by a Grand Jury, before any charges may be pressed against us in a court of law. (Pursuant to the Fifth, Sixth, and Fourteenth Amendments). Moreover, Americans take comfort in the fact that their most intimate places...their persons, homes, papers, and effects, cannot unreasonably be searched and/or seized; and, that such searches/seizures are only reasonable where there is a warrant, supported by oath or affirmation stating the particular person or place to be searched and seized, while also detailing the charges with which the accused stands charged. (As per the Fourth Amendment.)

Yet all of these well-established legal customs are in serious jeopardy in the modern age. With the Internet revolution, which hit full stride about twenty years ago, and the terrorist attacks of 9/11, the Federal Government has been amassing significant and substantial powers to gather information, whether they secured a warrant or not. In conjunction with the Foreign Intelligence Surveillance Act (hereinafter, “FISA”). A secret court was established, where unelected judges, or even more frighteningly, judges appointed by another judge―meaning the judge is not even appointed by an elected official―renders a decision as to whether to grant a warrant, via testimony supplied only by the prosecution, without the support of probable cause; and, without the requirement of informing the accused what they stand accused of...much less providing the accused with an itemized list of the types of information to be searched or seized.

While the original argument behind the FISA statute, at the time of its passing in 1978, was that it would never be used against American Citizens; the revolutionary impact of the Internet has increasingly brought American Citizens under the fold of this court. This is due, in part, to the fact that such information has global reach, and can travel through American territory without the other person even being in America...or that an American can be considered to be engaged in foreign intelligence activity, without ever leaving his/her home in the United States. Thus, under the current system, the Fourth, Fifth, Sixth, and Fourteenth Amendments are discarded, and an individual's computer can be searched without the user's knowledge or consent; or, even with an opportunity to respond to such activities in a court of law. Even worse still, numerous governmental agencies have started collecting vast treasure troves of information, storing said information on various governmental sites, without even bothering to procure the secret, general warrants issued by the FISA courts!

This raises alarming questions with respect to our fundamental, Constitutionally protected rights. There can be no question that national-security is an important issue, deserving some deference to the government. However, even with such collected information, the United States Government failed to prevent the horrific attack of the Boston Marathon Bombing—even though Russian authorities warned the United States, on numerous occasions about the Tsarnaev brothers; and, despite the fact that the National Security Agency (N.S.A.) had collected vast amounts of data on the brothers, without ever procuring a FISA warrant. It would seem to me, therefore, that our government has violated, and continues to violate our fundamental Constitutionally protected rights without much purpose. National-security shall always be a delicate balancing act, but we should not secure such “protection” at the complete sacrifice of our civil liberties―or, at least, that is how I feel on the matter.

 

[captain_jay_conrad]

•Extent of First Amendment Protections for Adult Themed Literature•​

One of the interesting lessons I learned in my time at law school, was that there are certain types of materials for which the First Amendment's protections do not extend to. Included in this list are such benign matters as yelling “fire” in a crowded theater. However, one of the more interesting, and perhaps least understood aspects of the limitations on the First Amendment include what is termed as “obscenity”. Like most legal terms, the term “obscenity” is considered a “term of art”...meaning that the definition used in the legal context is significantly different than the colloquial every-day definition of the word. Here, “obscenity” is defined as follows:

The character or quality of being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness. See The Free Dictionary by Farlex, Legal Dictionary: http://legal-dictionary.thefreedictionary.com/obscenity accessed 2/9/2014 at 7:47 pm.

In other words, “obscenity” is a legal term applying to anything offensive to morals and is very often times equated to the term “pornography”. It should be noted, however, that pornography is a much more limited term, referring to the erotic content of books, magazines, films, and recordings. Consequently, the overarching term “obscenity” includes “pornography”, but might also include things such as: nude dancing; sexually oriented commercial telephone messages; as well as scatological comedy routines. Needless to say, United States courts experience a great deal of difficulty in determining what constitutes “obscenity”. Even more troubling is the fact that such determination carries significant implications, because if an act or item is determined as being “obscene”, then it does not carry the protections afforded by the First Amendment.

In a historical context, it was not until the mid-nineteenth century that sexually explicit material became subject to statutory prohibition. Yet, with the changing legal atmosphere, as started with the Comstock Law of 1873―which criminalized the transmission and receipt of “obscene”, “lewd”, or “lascivious” publications through the United States mail...that courts began to examine the issue. Of course, having their roots in English common law, many U.S. Courts turned to the English case of Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868), for any sort of legal definition regarding obscenity. Like most common law cases, the Hicklin case established a “legal test” by which to determine whether a legal question fit a specific legal category. In this case, Hicklin held that the proper legal test was “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

In other words, the established test permitted judges to look at objectionable words or passages without regard for the work, as a whole, and without respect to ANY artistic, literary, or scientific value of the work. Of course, such narrow-minded application of a common law test was bound to lead to some abuse. In 1930, courts of the State of Massachusetts declared both Theodore Dreiser's novel An American Tragedy and D.H. Lawrence's novel Lady Chatterly's Lover as obscene. Yet, as time progressed, an important break from the Hicklin standard came in a lawsuit over the United States publication of James Joyce's novel Ulysses. Indeed, both at the trial and appellate levels, the federal courts held that the book was not obscene. See United States v. One Book Called “Ulysses”, 5 F. Supp. 182 [S.D.N.Y. 1933], aff'd 72 F.2d 705 [2d Cir. 1934].

Those 1930's cases proved pivotal, because they rejected the well-established standard as set in Hicklin and required the courts to examine the artistic, scientific, or other values added to society by the entire work. Nevertheless, in 1957, The United States Supreme Court developed a new test in the landmark case of Roth v. United States, 354 U.S. 476 (1957) Justice William Brennan Jr. stated that the term “obscenity” must be utterly without redeeming social importance, and therefore was not protected by the First Amendment. Moreover, he announced, as a new test, “whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appears to a prurient (meaning lewd or lustful) interest.” In addition, this new test was applicable to every level of government in the United States.

As one might imagine, the Roth test was difficult to utilize, because every term in it eluded a conclusive definition. So, again, The Supreme Court justices found themselves unable to fully agree as to what exactly constituted a “prurient interest” or what “redeeming social importance” meant. In Jacobellis v. Ohio, 378 U.S. 184, 84 (1964), Justice Potter Stewart expressed such difficulty at defining obscenity, when he remarked: “I know it when I see it”. Of course, this presented difficulties of its own.

In 1966, the Supreme Court added requirements to the definition of “obscenity”. The case involved a bawdy English novel Fanny Hill. Indeed, the court in Memoir v. Massachusetts, 383 U.S. 413 (1966), the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be “utterly without redeeming social value”, and “patently offensive because it affronts contemporary community standards relating to the description of sexual matters.” The requirement that the material be “utterly” without value made prosecution difficult. This was due, in part, to the fact that defendants presented expert witnesses, such as well-known authors, critics, or scholars, who testified about the literary and artistic value of sexually charged books and films.

Needless to say, it provides authors and producers of adult-themed material with a severe legal headache, when dealing with such matters, as the legal status of “obscenity” remained such an intangible, and over-broadly interpretation of what made something obscene. Fortunately, in recent years, state appellate courts have struck down numerous laws which made it criminally obscene for a parent to photograph his or her own child playing in a bathtub, or running nude on a beach. Moreover, A Michigan appellate court reversed the conviction of a Michigan man who was convicted in 1999, for violating an 1897 state law which prohibited the use of obscenities and profanities while in public. The man had been cited for loudly swearing while in a canoe on a public stream. The court ruled that the nineteenth-century statute, unquestionably operated to inhibit the exercise of First Amendment Rights. See Michigan v. Boomer, 655 N.W. 2D 255 (Mich.App.2002).

What one can determine from all of this, is that the standards for “obscenity” are changing, and that courts are beginning to shy away from deciding such issues with respect to the determination of obscenity. We can all breathe a little easier knowing this, but, nevertheless, more work needs to be done to provide a more overarching protection for adult-themed literature.

 

[Trygon]

This is probably the single most interesting and funny thread on the site. I just finished reading the tale of Justice Duck, and I have to ask if you know what happened to that statue. Such a thing belongs in a museum.

Also, Chrome must know this is a legalese thread, it's insisting I meant 'statute' up there.

 

[captain_jay_conrad]

It's funny you should ask that, I remember when the remodel was completed, they kept our wonderful fowl of justice on display with some of the other trims of the old courthouse. I'm assuming they'll place it in the City museum, if that thing even exists still. Court life is full of some very entertaining moments, and the Criminal Justice system is nothing short of dysfunctional. Half the time, the entire system just seeks to enrich itself, without caring about the client. At other times, the judge can step in, and tell a prosecutor he's full of crap. I actually had that happen on one of my cases.

So they arrest this lad for―I'll put it this way, "being a botanist"―they found a hyperbolic growing system for that most heavenly of "herbs" Marijuana. Now, keeping in mind that this young botanist had never stepped outside the bounds of the law before, one might logically conclude that the prosecution would be lenient. Well, never mind the fact that our District Attorney had been busted for pot possession, as a child, he decided that he would serve as some great avenger, throwing the book at whomever dared to do what he had as a child. (Oh these souls are ever so self-righteous). He wanted to give our botanist friend a year in jail, no option for probation, and a thousand dollar fine. (Mind you, a man who just received his fourth DWI conviction received a mere 180 day jail sentence, and a fine of $400).

So I get up there, make my argument about how the botanist is really learning about science, and after all, the police report didn't state that the herbs were found in his room―for indeed, they were found in his roommate's closet―and anyhow, they hadn't caught him in the act of selling any of his home-grown medicinal remedies...thus, the sentence seemed far too severe for the lad. Then the slave for our District Attorney...I don't even remember which ADA this was, steps up to the podium.

The Judge, as grouchy of an old man as the county could ever dig up, glares at the disheveled prosecutor, as he fiddles with his files, and shouts, "In the name of all that's holy, just give me the damn facts!"

"Yes your honor....I just can't seem to find the file," the ada replied with a grimace spreading across his haggard face. Of course, this pleased the judge not at all, "Jesus, that does it. This is the third case you've screwed up today, I'm dropping all the charges now, I don't give a damn what this boy did."

Of course, I happily accepted this outcome, even though it had nothing to do with my marvelous litigating skills (which were practically none existent at the time). No, justice is dished out in an incompetent manner, and many times it comes down to the luck of the draw. But it can drive anyone who deals with it to the brink of madness.

 

[captain_jay_conrad]

•A Journey Through Time•​

I always have to laugh when I hear a news commentator claim that the Supreme Court has always been the most powerful branch of the three co-equal branches of government. The reason I laugh is because these reporters don't seem to know much about the history of the court, or how it developed. I mean, have they even looked at Article III of the Constitution? It's the shortest of all the Articles, and that's supposed to be the most powerful branch of government? Well, I won't deny that the Supreme Court and the Judiciary in general has garnered a substantial amount of power for itself, but it wasn't always the case.

Let me take you back on a journey through time. We'll head back to the first decade of the nineteenth century, and take a little peak at the newly built capital of Washington D.C. The only creatures in the place, worse than the gaggle of politicians hovering around the steps of the Capital building, are the mosquitoes. I wager they're probably related...after all the definition of politics is: “Poly” meaning many; “Ticks” meaning blood-sucking creatures. All joking aside, for a moment, we take a stroll up the stairs of the magnificent Capital. Of course, the rotunda hasn't been built yet, and won't be for another sixty years. Inside the vast marble halls of the place we find the grand chambers of Congress. The floor of the House of Representatives is teaming with lower life forms―yes, your representatives...although there's quite a few less of them, as there were only thirteen states at the time, and a Hodge-podge of territories to the west. Tobacco smoke fills the air, as most people smoked, thinking that the tobacco helped their chances to fight off the Yellow-fever causing bastards...their cousins, the mosquito.

Next up comes the chamber of the Senate. What an amazing site. It's opulent, filled with elder statesmen. At that time, all Senators were appointed by their respective State Legislatures, and so they didn't carry the same haughty disposition as their House of Representatives brethren. After all, their respective state governments could yank them back home, sacking them...with or without cause. Needless to say, being a Senator didn't carry the same kind of weight that it does today.

Another turn down another hall, and we arrive at a broom closet. But, not just any broom closet. No, this broom closet is VERY SPECIAL. For with a turn of the head, you'll notice the grand lettering painted above the door. “The Supreme Court of the United States of America”. That's right, the initial planners of the Capital building had completely forgotten about the Supreme Court. At that time, the court was meant to be housed in the same building as what the original drafters of the Constitution thought of as the most important branch of government―the legislature.

But, because no one really paid much thought to the judiciary, no one bothered to tell the architects and planners about their intention to put the court in the Capital building. Alas, the court had to have a courtroom, so being the great improvisers that they were, the fist government under the United States Constitution shoved the Supreme Court into a broom closet. I mean, it ought to be enough room for the justices and the parties to the case. Besides, there's no jury at the Supreme Court. So this plan might work ideally.

Needless to say, after the war of 1812, when the British traveled to D.C. to throw their “do you miss us yet” party, which carried with it the usual raucous destruction of arson and vandalism, before the fledgling nation had a chance to tell them “nope”, the Capital building, along with the White House sustained severe damage from fire. The Supreme Court, never one to avoid an opportunity to increase its prestige or power, leapt at the first opportunity to procure a new building for themselves. And that's how we gained the iconic, if not slightly oppressive looking structure that we know as the Supreme Court today.

But, there was a deeper meaning to this separation. The Chief Justice of the Supreme Court at that time, John Marshall, wanted to ensure that the Court carried a power that no other supposedly “co-equal” branch possessed. And he was willing to use any dirty, underhanded trick to ensure that the Court sustained this power. What power is this of which I speak? Why, the sole power to determine whether an issue is Constitutional or not. Today we refer to this power as “judicial review”. If you turn to the four-corners of the United States Constitution, you might be surprised that you find no mention of “judicial review” anywhere within the document. I'll clue you in...you never will find it, because it ain't there.

No, judicial review was a power that many state level courts possessed, but it was not intended to be for the highest court in the land. After all, that court was just to decide issues between the United States and foreign governments with treaties, admiralty law...and maybe to hear appeals from the peons from the rest of the country. It wasn't intended to be the marble hall of all things Constitutional, as we know it today. So, how did John Marshall pull off this greatest sleight of hand in the history of the American government?

Why using a logic flaw to decide a case, in which he should have recused himself, due to a conflict of interest! Give me a second to catch my breath here, that last sentence carried a lot of weight with it. In fact it's so important, I think I'll repeat it with some emphasis this time. By using a logic flaw to decide a case, in which he should have recused himself, due to a conflict of interest! Phew, that's better!

But this sleight of hand I speak of occurred in one of the most monumental, self-interested, perfect examples of poor logic used in the Supreme Court...and all with the design of increasing the power of the court ten fold. So, now we venture back to a time when the Supreme Court was still in the broom closet. (Can't move out of the broom closet until you've massed some power... 'amiryte?)

The year was 1803, America was only three years into Thomas Jefferson's presidency, and already the Vice President, Aaron Burr was harboring ill will against Alexander Hamilton...yet the famous duel was still a year away. 1800's election was so contentious that it was known as “The Revolution of 1800”. Thomas Jefferson had just won a staggering victory over his arch-rival and fellow Founding Father John Adams. Of no small note here, both were blood-sucking attorneys, like yours' truly! Alas, I digress!

Adams, and his Federalist party (whom, coincidentally, John Marshall was a proud member), were shocked by their defeat. Congress was still controlled by the Federalist party, as the 6th Congress would hold power until January 1801. So what did they do? They responsibly turned power over, without causing any trouble....ah, who am I kidding? They decided to stick it to their political rivals, passing any and every disruptive law they could. (You think modern politics invented nastiness? Nah, they ain't got nothing on the scheming Federalists of the early Nineteenth Century!) So, during this lame-duck session, Congress passed a rather controversial law, “The Judiciary Act of 1801”. Sounds harmless right? The Act modified the Judiciary Act of 1789, in establishing not one, two, or even three...but TEN new district courts, expanding the number of circuit courts from three to six; and, for good measure, added additional judges to each circuit, thereby availing the President with the authority to appoint Federal judges and justices of the peace. (Something the Federal Judiciary probably wishes it had to this day...since Justices of the peace do such marvelous case work as...traffic tickets, and dog-poop complaints).

Then to show that he was a mature fellow, and gracious even in defeat...John Adams, on the last day of his presidency...in an attempt to stymie the incoming Democratic-Republican Congress (see! They got along at one point!) and administration, appointed 16 Federalist circuit judges, 4 Federalist justices of the peace to offices created by the harmless little Judiciary Act of 1801. Interestingly, the other side didn't like this much, and referred to this little move as the “Midnight Judges act”. Included in this upstanding bunch of newly minted and most honorable judges was a man by the name of William Marbury.

A true man of the people―as he had been a prosperous financier in Maryland...I mean, aren't we all?―who, (surprise surprise!) was an ardent Federalist, had been appointed for the position of justice of the peace in the District of Columbia! Isn't that fantastic? His term was to last five years, and he was, “authorized to hold courts and cognizance of personal demands of the value of twenty dollars.” Now mind you, most people never even saw twenty-dollars back then. But we're talking about a city full of wonderful politicians, who loved lining their own pockets. (Think Benedict Arnold. He did it...so did Congress...some things never change!)

Now, here comes the juicy part for John Marshall. Even though he had just been appointed Chief Justice of the United States, Marshall continued acting as Secretary of State at President Adam's personal request. Therefore, it was he who signed the payment slips, and authorization slips for the new judges...of whom, one William Marbury, was about to bring his case before John Marshall's court. Conflict of interest? Nahhh...this was standard politics! Anyway, in 1803 the case of Marbury v. Madison slithered into the broom closet known as the Supreme Court. The issue before the court was the method of getting a case heard before the court. There are three ways a case can be heard in the Supreme Court: (1) Direct filing within the court; (2) filing in a lower federal court, such s a district court, and appealing all the way up to the Supreme Court; and, (3) filing in a state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on an issue of Federal law. The first is what is known as an exercise of original jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.

Marbury, who was pissed to discover that Madison wouldn't recognize his job as traffic judge for Washington D.C. Filed a petition for the writ of mandamus directly to the Supreme Court, and as a consequence, the Supreme Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it.

That's all well and good, Marbury made the argument that in the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions for writs of mandamus. This, of course, raised several issues that the Supreme Court had to address:
(1) Does Article III of the Constitution create a “floor” for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress cannot modify at all?;
(2) If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution?
(3) Most importantly, who is supposed to decide who wins....so Marbury can become enforcer of carriage speed laws in Washington D.C.?

It was in the answer to the last question, that the Supreme Court formalized the notion of Judicial review. Basically, the constitutional issue on which Marbury v. Madison was decided was whether Congress could expand the original jurisdiction of the Supreme Court. Ever the opportunist, John Marshall was ready to jump feet first into this case, conflict of interest be damned!

So, on February 24, 1803―nearly 201 years ago―the Court rendered a unanimous (4-0) (as there were only four justices at the time) decision, that Marbury had the right to his commission, but that the court did not have the power to force Madison to deliver the commission. Marshall wrote the opinion of the court. He presented the case as raising three questions: (1) Did this fool Marbury have a right to the commission?; (2) Do the laws of the country give Marbury a legal remedy?; and, (3) Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

Well, Marshall wasted no time in answering the first two questions affirmatively. He found that the failure to deliver the commission was “violative of a vested legal right”. (albeit a rather dubious one at best). In deciding whether Marbury had a remedy, Marshall proclaimed:

The Government of the United States has been emphatically (yes...make your dubious claim ring with an air of authority!) a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right (which was created in a back room deal, all to stick it to our opposition!).

Thus, one of the key legal principles on which Marbury relies is the notion that for every violation of a vested legal right, there must be a legal remedy. We refer to this as justicibility...or standing today. Marshall wasn't finished though. He next described two distinct types of Executive actions: political actions, where the official can exercise discretion, and purely ministerial functions; where the official is legally required to do something. Marshall, fanning the flames of hope, found that delivering the appointment to Marbury was a purely ministerial function required by law. Therefore, the law provided him a remedy. I'm sure Marbury thought “Hot Damn! I'm going to be the most insignificant judge in the entire Federal government!”

Marshall went on, claiming that a federal court has a “special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'” If a court does not have the power to hear a case, it will not issue dicta (which is what Marshall was doing right there.) Consequently, with exceptions not applicable here, a federal court must decide whether it has jurisdiction before discussing the merits of the case. (Here is a wonderful example of circular reasoning! The court always has jurisdiction to determine whether it has jurisdiction, even if it doesn't. But why? Because the court must determine whether it has jurisdiction, even if it doesn't. Then how can the court have jurisdiction? Because the court must have jurisdiction to determine whether it has jurisdiction! Ah! That makes PERFECT sense!)

Interestingly, Marshall never addressed the jurisdictional issues, until after he addressed the first two question presented above. Because of the canon of Constitutional avoidance (for example, where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one. Now, comes the third question.

Marshall, discontented with the question as presented, divided the question further, asking if a writ of mandamus (basically a writ forcing the court to render a decision) was the correct means by which to restore Marbury to his right, and if so, whether the writ Marbury sought could issue from the Supreme Court. Wasting no time again, and demonstrating himself to be one of the earliest Trolls in recorded history, John Marshall concluded that since a writ of mandamus, by definition, was the correct judicial means to order an official of the United States (in this case, the Secretary of State) to do something required of him (in this case, deliver a commission), Marshall then devotes the remainder of his inquiry at the second part of the question, namely: “whether it [the writ] can issue from this court.

Marshall examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall next looked to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions. He had argued that the Constitution was only intended to set a floor for original jurisdiction which Congress could add to. He then disagreed and held that Congress was stupid, and didn't have the power to modify the Supreme Court's original jurisdiction. As a consequence, he found that the Constitution and the Judiciary Act conflict. Marbury needed to start worrying at this point!

Thus, the conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress in conflict with the Constitution are not law and that the courts are bound instead to follow the Constitution, affirming the principle of judicial review. To support this position, Marshall looked to the nature of the written Constitution―there would be no point in having such a written Constitution if the courts could just ignore it! (Like they do today.)

Indeed, he asked to what purpose are powers limited, and what purpose does the limitation, committed to writing serve, if such limits may, at any time, be passed by those intended to be restrained?

Marshall then argued that the very nature of the judicial function required courts to make this determination. Since it's the court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, when two laws conflict with each other, the court must decide which law applies. Then, in typical arrogant fashion, Marshall points to the judge's oath, which requires them to uphold the Constitution, and to Article VI's Supremacy Clause, which lists the Constitution before the laws of the United States. Part of the core of this reasoning was intentionally handed to permanently increase the power and standing of the United States Supreme Court. At this point...Marbury was sweating bullets, wondering what in the Hell was supposed to happen to his JOB?

Well, Marshall had ruled that the Judiciary Act violated the Constitution, and therefore wasn't a law at all. Therefore the Court lacked the jurisdiction to rule on the writ of mandamus, and Marbury was basically SOL. I could imagine John Marshall donning a troll face mask at this point, while Marbury wept, wondering where in the Hell it all went wrong!

So, you see...the Court granted itself power, at the expense of the very person who was attempting to redress a grievance in front of the court. Such is the ironic history of our judiciary...and you wonder why it is full of cynical jackasses today!

 

[captain_jay_conrad]

•Journey Through History: The Round of The Second..wait, what?•​

United States history is full of wonderfully odd little court decisions. Ranging from the ludicrous Marbury v. Madison to the rather racist decision in Dred Scott v. Sandford . But, there are even more remote decisions, which drip with irony, and get little attention today. Since I already have the time-machine warmed up, and will serve as your Willy Wonka―the Gene Wilder version, not the Johnny Depp version that looks like loli/shota/pedophilia...I could live without the mental scars―on this brave adventure of living Supreme Court precedence! Step right up, claim your seat, and take a swig of the snake-oil I picked up at the foot of John Marshall’s broom closet courthouse!

We first travel five years into the future from our last stop at 1803 Washington D.C. We arrive in the State of New York, in a cloud of lord knows what. The Legislature just granted Robert R. Livingston and Robert Fulton exclusive navigation privileges of all the waters within the jurisdiction of that State! This included boats moved by magic! Er, I mean fire or stream, and the deal was to last for a term of twenty years. The Legislature subsequently decided to also petition other states and territorial legislatures for similar state-sanctioned monopolies...as it was the trendy thing to do! They hoped to develop a national network of steamboat lines, but the rest of the territories snubbed their noses at the New York pricks...all except one..the Orleans Territory―what we know as Louisiana, today. Those squirely yet adventurous Cajuns accepted the petition, awarding both Roberts an exclusive navigation privilege and monopoly on the lower Mississippi.

Aware of potential new steamboat navigation, competitors challenged Livingston and Fulton (Do not pass go, do not collect two-hundred dollars!) by arguing that the commerce power of the Federal government was exclusive and superseded state laws. As usual, legal challenges ensued, and in response...the monopoly attempted to undercut its rivals by selling them franchises, or buying up the competition’s boats. (It’s like Microsoft...only with boats and steam.)Former New Jersey Governor, and alleged communist―even though commies didn’t exist yet― Aaron Ogden had tried to to defy the monopoly. However, like most politicians, turned coat and ultimately purchased a license from the Livingston and Fulton assignees in 1815. He thereby entered business with Thomas Gibbons from Georgia.

Ah, blissful partnership...which collapsed three years later, demonstrating that the two probably hated each other. Gibbons, oh greedy Gibbons, operated another steamboat on Ogden’s route between Elizabethtown and NYC. This boat, unlike the ones run by your friendly Monopoly guys, had been licensed through the U.S. Congress under a 1793 law which regulated the coasting trade. Of course, the partners ended up in the New York Court of Errors, which granted a permanent injunction against Gibbons in 1820. In the interim, Gibbons also took on Cornelius Vanderbilt―this really is starting to look like the board game!―as his ferry captain, and later, his business manager.

Somewhat annoyed by this, Aaron Ogden filed a complaint in the Court of Chancery of New York―since we still adored the English titles for our courts at the time―and asked the court to restrain Thomas Gibbons from operating on these waters (harming his little act in the Monopoly). His lawyer, a typical scumbag, contended that states often passed laws on issues regarding interstate matters and that states should have fully concurrent power with Congress on matters concerning interstate commerce...(Conveniently ignoring Article I § 8, Clause 3‘s Commerce Clause...and that whole Supremacy thingy found in Article VI).

Not to be outdone, Gibbons’ lawyer, Daniel Webster, argued that Congress possessed the exclusive national power over interstate commerce according to Article I § 8 of the Constitution...and arguing otherwise would result in idiocy, confusing and contradicting local regulatory policies. The Court of Chancery, and the Court of Errors found in favor of Ogden, issuing an injunction to restrict Gibbons from operating his boats...in compliance with New York’s prior granting of a Monopoly.

Now, fair traveler...it’s, how shall we put it? ON! The battle of the monopolies! In one corner you have the United States Federal government, itching for a fight to maintain its monopoly. In the other corner you have New York, filled with its Monopolistic greed and wizards―all that black magic known as steam engines and whatnot―ready to battle it out in the courts, spilling blood over an issue that would be outlawed by the turn of the century!

Gibbons did what most jackasses who weren’t pleased with their Court decision do...whined...er, appealed to the Supreme Court, arguing as he did in New York that the monopoly conflicted with Federal law! After several delays (justices had to get their wigs powdered and all), the court began discussing the meaning of the Commerce Clause. I must warn you, dear sojourner through time, in 1824, the Commerce Clause had just become an issue of wider interest. Congress sat in their back rooms debating a bill to provide a “Federal survey of roads and canals”, which like all Federal projects should operate smoothly and efficiently!―yeah, right! It’s also interesting to note that particularly Southerners, had grown more sensitive to what the resolution of these issues would mean to them, as the sectional disputes which would lead to the Civil War were already heating up like a tail-gating party before a heated college rivalry game.

The Supreme Court ruled in favor of Gibbons. Indeed the only argued source of Congress’s power to promulgate the law at issue was the Commerce Clause. (Oh how this court case could have gone so differently...if decided in 1992...instead of 1824!)

The Court faced the legal issue of whether the law regulated “commerce” that was “among the several states.” With respect to “commerce,” the Court held that commerce is more than mere traffic―that it is the trade of commodities―it is also intercourse (no, not the exciting kind). This broader definition includes navigation. Moreover, the Court interpreted “among” as “intermingled with”.

Indeed, the court went on to state: “If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.”

Boy that’s not littered with a logic flaw at all. This beautiful little example of a non-sequitur argument wound up being the lynch pin of the entire proceeding! The part of the ruling which stated that any license granted under the federal Coasting act of 1793 takes precedence over any similar license granted by a state is also in the spirit of the Supremacy Clause, although the Court did not specifically cite this clause. Nah, they felt more contended on an argument of If one congress has a power like this, and another congress under a similar circumstance, but slightly altered, has the same power...then they must be the same!

Thank God we have the Supreme Court to make such wise and informed decisions for us. The ultimate lesson here is, kids, if you want to establish a monopoly...establish it with the support of the Federal Government! I’m sure Vanderbilt would eventually wish that the court ruled in his favor like this a littler later down the road, but, for some strange reason they upheld the Sherman Antitrust Act some sixty-six years later. Alas, monopolies were safe...for the time being, at least.

 

[captain_jay_conrad]

During my first year of law school, my best friend and I, after stumbling out of classes, and going to the nearest alcohol dispensary in town―the God damned Apple-Be's across the street―and proceeded to enjoy our alcohol inspired dinner. After sobering up, and having finished our studies, we got into his car (since we car pooled to save money...lord knows law-students live as frugally as possible, when tuition costs as much as a fucking car), and on the way out we spotted a city bus, filled with all sorts of unsavory characters within. On the back of this bus sat an advertisement, that I'll never forget. "LAWYERS FOR JUSTICE!"

Needless to say, this didn't bode any confidence in my friend and I, as we had just gotten out of torts class, and our torts professor was the personification of what one thinks of when the phrase "ambulance chaser" is used. Of course, we both thought of a way of modernizing that great catch-phrase that is only a little less scummy than a catch phrase I saw at home my first Christmas break―"I Sue For YOU!"―we came up with Lolyers for justice...because, to be honest, the bull shit that happens in this profession, even at the school level forces you to laugh...or to collapse into nothing.

So, in honor of that, I decided to just play around a bit with the title of this little journal of worthless legal facts, depressing courthouse realities...and well, I'm out of booze, so! Viola!

Oh oh, and one last thing! Trygon, please forgive the horrendous photo quality of this. But I actually found a 1980's photo of our famed guardian of justice. That Fowl of all fowls, may he forever rest in pieces..er Peace.

 

[captain_jay_conrad]

Oh what irony! What cruel, cruel irony. Of course most sane people would define a large billboard of this nature as poetic justice, and I'm inclined to agree. For countless generations lawyers (Advocatus Malum), have held every other line of profession, labor, or humanity in general to unrealistic standards, and all while arrogantly claiming to do so for the purpose of protecting society. Of course, they never held themselves to such a standard.

In our legal ethics class (What an oxymoron!), the professor always stated that law is a "self-policing" profession, and that we, the aspiring vermin to keep the pestilence thriving, would need to take up the mantel of reporting our fellow scumbags, should we even suspect them of engaging in unethical conduct. As you might guess, such a system leaves quite a bit to be desired for a general public left to the whims of these aggressive parasites! But, the law of nature devises ways of rectifying what can only be defined as an evolutionary mistake! In her cook-book of life, Mother Nature created a recipe for dealing with lawyers.

Just add one cup irony, and five cups profit-motive, and viola! You'll have lawyers devouring themselves in a cannibalistic ritual known as the "legal malpractice lawsuit"! So, how did such a process come about? Very good question, dear friend. I'm glad that you never asked it, and I supplied it for you! It would be gross oversimplification to merely chalk this all up to the greet on the part of the lawyer. Rather, the answer rests somewhere between selfish motives of your dubious slip-and-fall plaintiffs' attorney, to a growing sense by the general population, that the court system could play the roll of their personal piggy bank quite nicely.

But, I suspect that the reasons have roots which reach far deeper than even this peculiarity within our legal system. To provide you a fuller picture of my own opinion why such a development occurred, I need to dissect some important judicial evolution which occurred over the span of the last century. When 1900 hit the history books, tort law was a far different animal than the mutated circus elephant we see today.

Tort law is a specific field of law which addresses personal wrongs. The name even has its roots in "to cause pain". In Latin, "tort" means "to twist". Indeed tort is the root word for "torture", which literally means inflicting pain through the act of twisting. Tort law is the oldest form of civil law, and the second oldest form of law in general; the dubious honor of "oldest type of law" goes to criminal law. Unsurprisingly, the earliest tort actions bear a striking resemblance to certain crimes. Indeed, the earliest examples of tort actions are what we call "intentional torts" today.

Intentional torts include such causes of action as assault, battery, and trespass...just to name a few. Defenses to such claims include consent, or even self-defense. Thus, early torts were a type of criminal action, except that civilians brought the claims to court, as opposed to the state. Hell, even the elements required to establish the offense, resemble the basic elements needed before the accused can be found guilty of a crime―other than certain statutory offenses, which are a bit more technical than what is needed for the topic at hand.

There are three elements needed to constitute a crime, those elements are: (1) Actus Reus (A guilty act); (2) Mens Rea (A guilty thought or intent); (3) Concurrence of time (Meaning that the previous two elements occur in close enough intervals that the criminal actor's intent can be said to "carry over", thereby resulting in a crime.) Well, to prove an intentional tort, the plaintiff must prove that the defendant: (1) Intentionally; (2) Committed, or omitted, certain act or acts; (3) Which foreseeable caused or would cause harm to the plaintiff.

As you can see, the elements of proof are extremely similar, and are practically identical in actual practice. However, with the start of the Twentieth Century, an area of tort law already in its infancy, at the time, was ripe to take off; forever changing the nature of courts, and the way people interacted with them. This subsection of tort law I speak of is the action known as "negligence". All of the sudden, the defendant's intent went out the window, and the plaintiff's consent to the defendant's actions no longer meant a damn thing.

Negligence carries with it four essential elements of proof: (1) Duty of care; (2) Breach of the duty of care by the defendant; (3) Causation; and, (4) Damages.

Without all of the aforementioned elements, a negligence action fails. But, if proven, the defendant would be on the hook for damages from his/her own negligence...and, for any negligence on the part of any parties attempting to remedy the harm created as a result of the defendant's original negligence. Indeed, with the development of Products Liability law, the defendant no longer needed direct privity (contact or interaction) with the plaintiff to be held liable. Seeing as this could result in financial ruin for huge portions of the entire population, is it any wonder that it would only be a matter of time before certain parties would seek the option to redress any mistakes made by their attorneys, which led to substantial financial harm?

Granted, this is a much condensed and abridged account of what happened over the past one-hundred years. However, I believe that these developments were what led to the further transformation of the legal system to what you see today. As ever increasing monetary amounts became involved, the general nature of the legal system itself, particularly in the field of tort law, became especially contentious. Moreover, I fear that this trend is only going to worsen, before we actually see any relief from the madness.

 

[captain_jay_conrad]

•Unexplained Times•​

We live in uncertain times, that much we can say for sure. Things seem out of place, which should seem ordinary, yet the world continues to operate as if nothing has happened. There’s an air of unpredictability which seems to grip this land in its claws, refusing to relent, and the people continue to walk around in a haze, as if somehow pretending things are normal makes everything alright.

I suppose this is their coping mechanism for the highly unusual occurrences throughout the land. Perhaps they take no notice of what is happening with regards to their once sacrosanct privacy. Still, there is something completely off in the way things have turned out. We should all take notice of the increased sensation of surveillance throughout the land. None of us should take the liberties we have for granted, because our government doesn’t seem to be holding our well-established rights as being a well-established fact. Perhaps my words here make me sound like I have approached the edge of what might be deemed as sanity. At times, I know it might sound like I’m a conspiracy theorist. No more so than George Orwell nearly seventy some-odd years ago.

I’m merely recording my observations for analysis, making certain deductions therefrom, and attempting to continue on with my life in as organized and efficient manner as possible. Perhaps, the fact that it seems that the trust between people and government has been breaking down over a period of half-a-century, drives me to have such concerns. I don’t ever recall things being this divisive in my youth. Then again, being in one’s youth does not allow one the chance to rationalize the world around them.

Rather, I think my rather ominous outlook on things boils down to my seeing things in a different light, than I did when I was a boy. The world is certainly a far cry from what it was when I was born. Indeed, many of us born during the 80's and 90's witnessed a great change within the way humankind communicates, interacts, meets, and even falls in love. We, my friends, stood on the pinnacle between changing ages. We’re not much unlike those born in the latter half of the nineteenth century. They, like us, witnessed revolutionary changes. Imagine going from horse and buggy, to space flight, all in a singular life time. Well, the same can be said for many of us here. We recall a time when things were recorded either by typewriter, handwriting, or very primitive computer. Fewer of us can remember a time when cable television was something of a rarity. But all of us, witnessed the transformation that the Internet has had on the world.

In the early days they referred to it as an “Information Super Highway”. I suppose that was a good description at the time, since we really didn’t have anything else to truly compare it to. But, what the Internet has become, is something far greater than a mere information super highway. Rather, it represents a vast and ever expanding collection of all human creativity, allowing classical works of art, fiction, scientific discovery, legal break throughs, medical technology etc, to be available to the farthest reaches of the globe.

This sort of freedom, however, carries with it a far darker side. A side we never considered at the time the Internet made its debut in the hands of the popular masses. When it was in its infancy, the Internet and web (as they were once considered separate things. Perhaps they still are, but in the collective imagination of the general public, I believe they have become somewhat interchangeable), lacked the speed and power to be as massive of a data-mining tool, as it has become today. Moreover, we didn’t have the mobility of the Internet that we have today, allowing for our data and even our movement to be traced back to us wherever we went.

Maybe the social networking fad has aided in the expansion of this data starved society. But I don’t think so. I think it’s natural that we would wish to share our thoughts in such a way that others could partake in the discussion. However, I don’t believe that we intended for it to erode our privacy in the ways that it has. Does the existence of technology of this nature, per se, mean that we automatically give up our right of freedom, because we cannot expect such privacy in a digital age?

I have heard many pundits for expanded state control of things argue this. But, I don’t believe that it is true. I think that rights, are first and foremost, unalienable. In other words, they are a part of humanity, not a part of despotism. In fact, they stand as the direct antithesis of despotism. Therefore, it would make sense that despots, of any political persuasion, would wish to stamp out privacy. The old adage, “knowledge is power”, is very true. Just think of the amount of power that the Internet has afforded people, who before the outbreak of the Internet, would have no influence whatsoever. Souls like Edward Snowden and William Assange come to mind. Without the Internet, I don’t think these people would have ever garnered the public spot light.

Yet, there existence represents something. It represents the somewhat rebellious nature that defined the anonymity of the early Internet. Back when the Web was first reaching its prominence, people wished to use the Internet as a mask, to voice their opinions over controversial subject matters, or to delve into a “secretive” style of life, denied them by the restrictions of their actual physical lives. The Internet provided an exciting opportunity to explore a deeper side of one’s soul. This made the early Internet a fascinating, perhaps dangerous place. However, with the advent of social-networking, the anonymity aspect began to diminish somewhat drastically.

Sure, it still exists in certain niche portions of the web. For instance, anonymity seems to be cherished within the community. And that’s as it should be. It allows us to explore ourselves, as once we were free to on the rest of the net. At times, it makes me wish that we could go back to an earlier web, where things were simpler. But, I believe that’s mere nostalgia talking, as opposed to any practical sense of my conscious mind.

 

[captain_jay_conrad]

http://www.nationalreview.com/corne...tor-indicted-fraud-theft-jillian-kay-melchior

So just when you think things can't get any worse with the Healthcare reform debacle in the United States, something happens in plucky little Colorado. Apparently, the director of their health exchange services, that is the services provided by the State to prospective consumers for insurance locate compatible insurance programs within the guidelines of the Affordable Care Act, has just been indicted for fraud. Now, just because someone is indicted, doesn't mean, per se, that they have been proven guilty of it yet. But, it is a serious problem, and the state has placed her―the director of the health exchange program―on administrative leave! The reason for this darling of bureaucratic wonder's indictment? Well, apparently, she stole confidential information from a non profit organization.

Now this is truly alarming, and clearly demonstrates the high caliber and quality of her character. Because what we face in this country, and indeed worldwide, as the fastest growing area of crime, is identity theft. Of course, what is the most confidential and personal information which one can provide? The information connected with receipt and purchase of health insurance policies! This is the sort of information requiring your Social-security number, your prior health concerns, your current health concerns; who your doctors are, your address...ad infinitum. Indeed, these problems are truly serious, and can we really say that the system has been designed to protect and ensure the security and confidentiality of this information?

It travels down similar lines as that of mandatory switch to Electronic Medical Records (MRS) by physician's offices, hospitals, etc. The problem with these new developments, especially the mandatory developments, is it creates a conflict with current standing Federal law―primarily the HIPAA guidelines, providing patients who suffered from a breach of confidentiality―that is, as health care institution has inadvertently allowed confidential information to be placed in such a position that unauthorized eyes can peer upon these documents―such patients are able to gain astronomical damages, which shoot into the stratosphere! Millions of dollars in damages are involved in this sort of cases.

Yet, when we see that the greatest source for the fastest growing area of criminal activity is, in fact, the Internet...one might suppose that the new laws would provide certain shields, protecting the institutions and physicians who are forced to convert from more secure methods of storing data, to this newer, less secure method of storing and transferring patient information. But, the sad truth of the matter is, government―being as efficient as always―failed to provide such protections, or offered any form of insurance to these healthcare institutions handling such vast amounts of sensitive and confidential information at all. Thus, it means that these physicians, hospitals, pharmacies, and what not, who all handle patient information...all of which is sensitive, are forced to potentially violate a preexisting and well-established Federal law. This, my friends, is madness!

More than that, it is Unconstitutional. What this does, is create an Ex post facto law. An ex post facto law, is a law which makes something which was previously legal/illegal, legal/illegal after the fact, and has retroactive effects. Therefore, the law (HIPAA in this case), which existed first, can have retroactive effects on any breaches in attempts to comply with a new law, where a physician, pharmacy, or hospital now stand fully liable for any such breach. This is damaging, my friends, very damaging. It demonstrates the complete scope of idiocy when it comes to the bureaucratic madness controlling our Federal government. If there is one thing that American citizens deserve above all is, it is that the government works to its utmost, ensuring that said government does not create laws which force citizens to potentially violate other well-established, preexisting laws. Put another way, legislators need to know the content of any piece of legislation up for consideration, before it is passed. Common sense would dictate this. But, as we already know, common sense has no place in Washington DC!

 

[captain_jay_conrad]

•Polunatics•​

In case any of you were wondering what my political persuasions are, I'll give you a slight glimpse into my head. I'm an equal opportunity oppressor of all politicians! For they are worthless, insignificant insects who deserve no power whatsoever, yet manage to amass copious amounts thereof. So, let's take a look at some recent developments in Washington D.C. that have me both flustered and puzzled.

Is the Republican Party out of its mind? I thought the whole purpose of the government shutdown, a few months back, was to prevent further spending increases, as well as further excess spending. Yet, we see here, that these morons rather dubiously passed a debt ceiling increase! This directly contradicts the stance they have taken for...oh, I don't know...the last four years! They must be insane. If one's policy is one of stopping any increased spending, when the debt is spiraling out of control at an astronomical rate....it, therefore, makes no sense that one would suddenly roll over and say, “Oh deary fucking me...we just need to spend more to fix our problems!”

If either you or I handled our bank accounts, and balanced our checkbooks in a similar manner to our dear delightful leaders in DC, we'd be arrested...no questions asked! Here's a thought, write to the IRS and inform them that you'll pay your taxes at a significantly reduced rate in the future, on the off chance that you make less money! Do you think the IRS gives a damn? Nah...I'll clue you in, the answer is EMPHATICALLY no. These vultures will pursue you, using every avenue and dirty trick available to them. Therefore, we see now that the Republican party continues to march down the path of irrelevance, and then, we have to turn and glare at their opposition.

What in the hell are the Democrats doing? Sure, it's great that you come out in full support of labor unions. But, why are you then repositioning yourself on big businesses, and allowing them to exempt themselves from the healthcare exchange programs you created, thereby harming the very people in whoms' aid you claimed to enact that law―on a fully partisan basis, mind you―to begin with? It would seem to me that the politicians have gotten together, consumed copious amounts of cocaine, only finally to conclude, “Gee it would be very intelligent if we just screw everybody, and line our own pockets!”

In France, back in 1789, this led to politicians, mainly aristocrats and royalty back then, losing their heads to the “National Razor” (And no, I don't mean that worthless phone made by Motorola.) In the United States, I don't know where this is leading yet. But, it is driving me up the wall, attempting to figure out what in the hell they're thinking, or whether they even think at all. There's one thing that the people need to keep in mind, when observing these morons running around like a gaggle of mentally challenged geese on Capital Hill. That notion of which I speak, is that sovereignty rests within the hands of the people. Indeed, this sovereignty is delegated to the Federal government through the plenary (or near absolute) power of the states―which, again is delegated thereto via the consent of the governed. Well, at this point, I fail to see how these morons can have the consent of the governed, when they're running around like a bunch of idiots...lining their own pockets, betraying their own principles, and demonstrating that, even if they had principles...they'd abandon them anyway!

I level this charge towards both political parties―and I'm beginning to wonder whether any difference exists between them―you have all betrayed the sacred trust of the people, and are not worthy of your positions of power! Moreover, I'm beginning to wonder what the true purpose of government is anymore. Instead of solving problems, or negotiating like reasonable adults...these jackasses run around flinging meaningless platitudes, all whilst thumbing their noses at the actual circumstances facing their constituents. This is beyond belief! But, then, I gaze to the President and inquire, why is he operating outside the scope of the law, respecting the enforcement of certain portions of the “watershed” legislative piece of his entire presidency...healthcare reform?! You know, this sort of selective enforcement has been tried before. It is what is known as a “line-item veto”. I actually support a Federal level line-item veto, as it exists in many states. A line-item veto essentially allows the chief executive―be it a governor at the state level, or the President at the Federal level―to pencil out certain portions of the law. However, since the Supreme Court has already held that, at least at the Federal level, it's unconstitutional...then why is the President, who is an avowed Constitutional-law professor, operating outside the scope and boundaries of the very document which provides him with his authority to govern?

This is all very baffling to me. Thus, I level the following indictment at the entire federal government. You are all worthless morons, who don't know how to assist this country, and have merely made things worse through your idiocy. So, where do I stand politically? I stand pissed off, and that's about it.

 

[Trygon]

Perhaps I'll have you draft up a constitution for Cascadia some day.

You know, after I've built a militia of freedom fighters, fought off america within and without, oh, and bogarted the nicest part of Canada too. All those silly formalities.

I often wonder about the dramatic changes Obama has undergone. He's not at all the same man that took office in 08. Some changes I saw taking place - Dealing with the GOP stonewalling him just because of the partisan divide has made him cynical, clearly. But the about-face on military action is what really intrigues me... Like why is gitmo still open? How did a campaign that could be described as 'war-abhorrent' lead to the FREQUENT military actions we see today? And so forth...

I can only assume there are many variables that only the President sees. But I wish that wasn't the case.

 

[captain_jay_conrad]

It is striking, even with Bush all those years ago there was a change. I don't know what it is about the office, there's something about it where people change, and not necessarily for the better. It is interesting how he (Obama) changed his stance on the military. Then again, I can't believe the GOP were stupid enough to turn around and throw up this idea of cutting military pensions, and then act surprised about it when the DNC calls them on it. It's like musical chairs for psych ward rejects. Better bar the windows, or the politicians will come licking. I would say deep down I'm a libertarian, but I can't stand that party either. I vote my conscience, and then throw sarcastic insults, because it makes me feel better!

 

[captain_jay_conrad]

•How Not to Defend Against A Disciplinary Complaint Filed With Your State Bar•​

http://blog.chron.com/houstonlegal/2011/04/nine-area-lawyers-disciplined-on-the-april-list/

I know that the information contained in the link I provided is old. But, there’s something important with regards to it that I wish to point out. Many people operate under the assumption that just because a lawyer has gone through the extra post-graduate level education that such a fact, in and of itself, means that the lawyer is per se a good professional. Unfortunately, that simply isn’t the case, as the first attorney in this little article focuses (He’s the one I’m going to focus on, because his actions are fairly common, yet also extremely stupid).

When it comes to the practice of law, it is very easy for clients to become disenfranchised with the entire process. Lawyers typically tell their clients not to take things personally, that it’s just business, or some other pre-prepared line of horse-shit that’s supposed to make the client feel better about him/herself. Well, I’m going to be more honest here than most lawyers are with their clients. The truth is, clients necessarily take their legal actions seriously. They are personal, it’s an adversarial setting. Have you ever wondered why the highest law enforcement agent, and the highest ranking governmental litigator are both a “general” of sorts (Attorney General, and Solicitor General respectively)? In fact, the Solicitor General is frequently referred to as “general” by the judges.

To answer this question, one needs to look back to the beginnings of American jurisprudence. Which has its roots primarily in England. However, in England itself there’s another influence on the law. England was subject to all sorts of invasions. My mother’s half of the family, being Danish, were a part of the initial Viking raids the raped and pillaged the Anglo-Saxons, who raped and pillaged the Picks and Celts, who raped and pillaged the land...so on and so forth. Anyway, the Danes established a sort of system in England, where the traditional population were to be judged by twelve Englishmen, or peers. The judge carried a hammer, which was the sign of the god Thor, thereby giving him the authority to sit in judgment or the entire proceeding. The litigators were of course warriors from the Danes, whom carried the task of recalling the tale of both sides in a case. In a sense, when the Normans took over, this role was taken over by knights of the Shire.

The process continued to develop, to a point that the term “General” was associated with these higher ranks in the system, because it was considered militaristic in nature. Therefore, a courtroom is, in a very real sense a mental battlefield. Thus, to tell a client that it’s just business, is like telling a combat pilot “Don’t worry about that missile, it’s just an explosive device”. Downplaying the importance of the fight makes no sense. Now, when the decks are against you, negotiation comes to the table. This is why criminal defense attorneys usually look for a deal. It’s because most juries will eat the accused up alive. First off, his/her actions took them away from their usual mundane, and comfortable position. They despise this. Secondly, the prosecution possesses near limitless funds with which to pursue the case. Is this fair? No, but whoever said anything about life being fair?

So, right off the bat, lawyers start off the representation process, on a bit of a lie. Then, when lawyers fail to keep communication with clients (as far as I’m concerned, this is a cardinal sin of lawyers. I go out of my way to stay in contact with clients, to the point where the clients either love me or hate me for it, but they can never claim I haven’t spoken with them), clients start to wonder what went wrong. Indeed, the most recent issue of the Texas Bar Journal stated that the number one cause of legal malpractice and legal ethics complaints result from poor communication by the lawyer to his/her client. Why on earth would this be the number one cause? It is not difficult to pick up a phone, attempt to contact the client on a daily basis. And, if you can’t get a hold of the client that way, then send a letter to the most recent address on record, and establish a trail. Good God, covering your ass isn’t all that difficult, it just takes a slim amount of effort.

But, that’s what leads to the fellow mentioned in the first part of this article. He filed an appeal against a disbarment ruling by a lower court...and didn’t even file a brief explaining his arguments. What sort of a fuck-wit doesn’t send a brief laying out the arguments for an appeal. This is not something the lawyer should be surprised about. Jesus-tap-dancing-Christ-on-a-pogo-stick! (God I love that phrase!) We learned about appellate briefs in the first year of law school. Our writing classes are devoted to the appellate brief for the first two semesters!

I didn’t learn how to write these long, snarky, sarcastic, comm-riddled, sentences which roll off the keyboard like a printing press smashing lettering into the pages of old books; from writing children’s literature. I learned to write like this because they fucking ingrained the notion of fully explanatory writing for the purpose of an APPELLATE BRIEF! So, this asshat, who is seeking to save his livelihood cannot even put forth the effort to lay down his argument for the court?

No wonder the Appellate Court through his case out. You can’t just wander up to the court and not have an argument prepared and expect to win. If this idiot couldn’t even take the effort to muster a defense for himself, I’d sure hate to see how he represented his clients. I suppose the reason that I get so worked up over this issue, is because we lawyers swear an oath. That oath requires us to do the usual things―uphold the Constitutions and laws of the land, to be fair, etc. But with respect to clients, we are not merely supposed to represent them, we’re supposed to ZEALOUSLY represent them. This guy gives the entire profession a bad name, as if we needed any help giving ourselves a bad name. Honestly, a fuckwit is a fuckwit; but, a fuckwit with the power of financial life and death (or, in some cases, actual life or death), is a dangerous thing.

Lawyers must be held to a high standard of accountability. We handle such important matters for people, that it needs to matter as much to us, as it does to the client. I take this notion to heart when representing someone. It’s why the ADA’s all know and at times, loathe me. Even if my client is a no-good son-of-a-bitch, his freedom matters to him, and it damn well matters to me too! Yet, I have worked with attorneys who will let their client rot in jail for a month, failing to check on a felony case, because they don’t give a damn.

I’ve reported attorneys like that, and not just me, other attorneys have as well. In the past attorneys never did anything like that (reporting that is), but the nature of the beast has changed. Law is far more complex than it used to be, and there are more offenses now than ever, which will end someone up in the slammer. Thus, lawyers must be more diligent than ever, and we simply cannot tolerate idiocy among our ranks. Nevertheless, far too many idiots remain.

The man who is the subject of my wrath here deserves to have lost his license. I cannot believe that he would have the gall to file an appeal without an argument. That’s insulting to the judge, to the prosecutor, who just got a whole new set of ammo to use against him in the future, and above all, to the tax-payers who have to pay for this mess. I use cases like this as a reminder of why I have taken due-diligence to heart!

 

[captain_jay_conrad]

You know, it feels good to get a call from an old high school friend who ran into some problems with her landlord at her business, and was about to lose everything about a year ago, and have her tell me that the advice I gave her not only helped her win her small claims case, but also got her some extra monetary damages on top. She's an antiques dealer, and as thanks she gave me one of the most incredible looking Meerschaum pipes. It's a 1910 fully carved bowl that is in the shape of the body of a mermaid. It also has a cigar fitting which fits into the bowl itself. The piece is obviously hand carved, and worth more than anything I would have charged her for legal services.

Of course, I didn't represent her because the claims were too small, and even my expenses are too high. But, I mapped out the argument for her and coached her on what to do. It felt pretty amazing, because it's one of the few civil cases which I could call a triumph, and it was all do to the advice I gave. Frankly, I was nervous at the time of giving it, because I had never handled a civil matter before, but the training kicked in, and she saved her business. So, apparently I have done some good in this world. I promise though, to return to my grumpy self soon!

 

[Trygon]

I'm gonna need a picture of that pipe.

If you haven't started already, you should be posting these articles on a blog somewhere. It might get you exposure to the right people, but it would also be good resume fodder.

Are you planning to stay in criminal defense, or do you have further aspirations in Law?

 

[captain_jay_conrad]

I'll work on getting a picture of that pipe shortly. I have some hopes of getting into administrative law, unfortunately the legal field in this area has dried up somewhat. The Economy has hit some hard times, but I'm ever hopeful that things will pick up. My Grandfather had been a corporate lawyer (after serving in Jag during WWII) I wouldn't mind dabbling in that either. It's just that young attorneys right now are a dime a dozen. Too much supply, not enough demand. I love parts of criminal law, and despise other parts of it. I hate the bureaucracy of it, and the inflexibility of the prosecutors. But I love some of the crazy shit I have seen, and even laughing at some of my clients. (I admit, shallow yes...but when you get caught for pulling out 16 stop signs in a row, all while a marked police cruiser is following you...something isn't right.)

Oddly, I also enjoy using the cops against the prosecutors. There are some good cops out there, but I find that, especially in the smaller towns, you have pretentious thugs who think the law doesn't apply to them, because they have a piece of metal pinned to their shirt. I got one case thrown out because a guy couldn't open his car door. It was an old Ford explorer which had faulty door handles. It could only be opened from the outside. The brilliant cops refused to open, said the guy was resisting, tazed him not once, twice, three times, but seven. And it was all on tape. They then found one pill of Ecstasy, and a half ounce of synthetic marijuana in a plastic baggy which he was sitting on...they pulled this guy out of the car, through the window (and this is all in front of his wife, mind you) and kicked him several times. Then, after they hauled him off to the hospital for stitches, they tried to open the car door from the inside, and found that it wouldn't, as he said, open.

I had a field day with that. After playing the DVD to the prosecutor who stared at me like I just had carnal relations with his sister, said.."I'm not going to drop the charges."

He swallowed when I grinned, oh he knew what was coming next, "Come on counselor, put that in writing. Please do that now," I said. "W-why?" he retorted unsure of himself. "Because, I'm going to go to the judge with this tape, and say that you refused to acknowledge a problem of abuse of authority within your little Sheriff's department here. Next up is that son-of-a-btich Michael Zimmerman, who made a name for himself suing this country before. He'll take on this client for a reduced fee, because I referred him, and he'll mop the floor with the country. You don't need that, after you already have a suit for letting an inmate rot in jail for 190 days, when she was only supposed to be in there for 48 hours. If I were you, I'd weigh my options, and quickly...I'm giving you exactly 30 seconds to make up your mind."

Well, case dismissed, I still sent the client to Zimmerman, and that suit is ongoing. These cops act like just because someone does drugs they stop being human, or people. That's bullshit and they know it. Frankly, I wish we'd do away with the drug laws and pursue the real criminals, people like the triple murderer going through the system now. Or, the drunkard who killed a family, by driving the wrong way down the freeway. I'm not the only defense attorney who feels this way either. There are so many better uses for county funds.

I have been mulling the idea of putting this stuff in a blog. I write it down as a way to decompress. If I held in half this shit, I know my mind would be poisoned. Everyone has to have a coping mechanism, or else the darkness of it all could encompass us. If there is one thing I have noticed about the attorneys, such as myself, who actually try for their clients...we have similar personalities, or else we wouldn't be drawn to what we're doing. Good defense attorneys and their clients both dislike authority. I didn't realize how true that was, until I saw the inner workings of the system for myself.