I for one thought yesterday's thread about the Texas vigilante was thought provoking and thought a more general law thread might be in order. My background: I received my law degree from Duke in 1989, after which I clerked for a federal judge in Atlanta. A federal court of appeal handles appeals from every kind of case: criminal, civil, habeas, INS, you name it. I then started practicing for a huge national firm with a small office in Los Angeles, where I remained for sixteen years. I litigated a fairly wide range of commercial cases (contract, antitrust, commercial tort, copyright, product liability and even a little IP), making partner along the way. A year and a half or so ago, I jumped ship and now manage litigation for a piece of a huge company you all would recognize. My expertise is primarily in litigation, but any questions re career tracks, law practice, or substantive areas are fair game. I'll stay away from overtly political issues (like Guantanamo) even though they might be law-related. My general political leanings are right-libertarian, to the extent that matters.

Flame on! Ask away!

To start the discussion off, I'll relate today's big law news item: the indictment of Richard "Dickie" Scruggs. Scruggs made a ton of money on plaintiffs-side asbestos and tobacco litigation. He is Trent Lott's brother in law. The indictment arises out of a fee dispute over a Katrina case; Scruggs stands accused of paying a state judge $50,000 through an intermediary for a favorable ruling. He is also accused of defying a court order to return certain documents in a separate Katrina case, although that for now is separate from the indictment.

Let me also observe that I thought the vigilante situation was not clear cut. I do not think we should live in a society that permits theft or robbery without significant risk to the perp; at the same time, anyone who is not troubled by the shooter's actions and judgments takes a rather too cavalier view of the value of human life.

What were the keys to your success at your old firm?

Imprisonment isn't a significant risk?

I don't have a question as yet, but I wanted to say that I am a big fan Howard, and I will eagerly follow this thread.

Howard,

Is Barry Bonds a criminal now? was he before he was indicted?

What made you want to become a lawywer? Being accepted into law school usually indicates you are a very capable person and would imply you have a lot of options. Why did you choose law over the other options you had?

Howard-

You found my last news link interesting, so here's another.

Link

This happened close to me. For those that don't want to read the story, some sick f**ks skinned a dog alive.

Here's the question I'm putting out...

I believe crimes of this nature clearly indicate that the person responsible has a predisposition to much more serious crimes later in life. I know, it's just a dog, but should we treat crimes like this more seriously for the benefit of preventing more serious, future crimes?

what kind of pro bono work do you do, if any? what area of law do you find the most interesting?

To ask a less hijacky question than my first, what level of knowledge about the law should a random person have? If it's hard to give a broad answer here, what criteria cause you to adjust your answer?

A fair ability to write clearly and simply. A fair ability to learn useful skills from senior people early one while not adopting their weak points. A willingness to put up with crummy, difficult work for several years and take lessons from it rather than whine. I don't have much raw jury charisma, nor was I much of a client development guy --both of which ultimately limited my career.

I also benefitted from the fact that I really did enjoy significant aspects of the practice. Courtroom time is really a blast in the right circumstances.

Hard to say. I think there are plenty of places in this country where simple theft isn't prosecuted all that often, or, as in my case, where the nearest police station to my house growing up was twenty minutes away, easy. I think the argument is here that private deterrence really does have an impact on this type of crime.

I don't have a good feel for how valid that arugment is, though.

Absolutely not. I think that the label "criminal" requires either a guilty plea or a conviction. I think he is soon to be a criminal because practically everyone on the planet is sure he is guilty as sin, but until that's formal, he's simply the "defendant" or the "accused." According to Bonds's lawyer, Barry is probably a "victim," although I rather obviously disagree with that.

I went to MIT as an undergrad and struggled to do well at engineering stuff. Political science and humanities were much easier for me, so I opted out of engineering, got a poli sci degree, and went to law school. Part of that was familiarity: Father Treesong taught law at UCLA for almost forty years. Mother Treesong was a secretary for a Supreme Court Justice and Stepmother Treesong was a lawyer, law professor, and official in government. My brother is also a lawyer; I think there was some benefit being familiar with the general notion of what lawyers did and how.

Without doing the research, my recollection is that it's well-established that some significant percentage of mass-murderers and other really evil folks start off with animal cruelty. Logically, though, that doesn't mean that everyone who is cruel to animals turns out to be Ted Bundy. For all we know, only a tiny percentage of animal abusers graduate to more serious crimes. From a due process perspective, I don't think the Constitution permits increased punishment for crimes that a person has not yet committed, so I think the strict answer to your question is no.

I think the idea behind three-strikes laws is to treat recidivism, but the criticism of those those laws is that they sweep in a bunch of people with relatively minor crimes and impose very harsh mandatory sentences.

I have a libertarian nut-job view of animal rights, so I'll stay away from my personal view of this issue unless someone is particularly intersted in it. It's likely to start a threadjack if I articulate it.

In my current role, none -- although I was highly tempted to go roust up a class to sue the Flying Imams on an intentional-infliction of emotional distress case. In the past, I've represented several indigent criminal defendants.

Oddly enough, I'm a process geek and generally avoided a subject-matter specialty. Of all the areas I dabbled in, I liked litigating in bankruptcy courts the best. That's because trials there have no juries and are usually on an accelerated time frame, avoiding the stupid discovery fights that burden down most civil litigation. Plus, a ton of my opponents were bankruptcy lawyers rather than litigators who didn't know enough about the rules of evidence or other trial issues, and at times, litigating against these guys felt like spearing fish in barrel. One transcript I'll remember for a long time:

Witness: Well, the banker told me . . .

Me (interrupting): Objection. Hearsay.

Court: Well?

Enemy lawyer: We really need this testimony, your honor.

Me: shrugs shoulders.

Court: Sustained.

Two questions for you, sir!

1) What do you think Americans generally feel of the plea bargaining system in America? I am interested in your opinion of this piece, which may or may not be biased:

http://www.ft.com/cms/s/0/2699c7c4-9...0779fd2ac.html

e.g. "Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty."

And so on. Is this the general consensus or just some wacky Brits?


2) Do you like U2?

I think a general survey undergrad course is a good idea. I think you should know what a tort is. I think a general education requires a general working knowledge of the Constitution. And I think it behooves everyone to know at least a little bit about criminal procedure.

After working on a federal court of appeals for a year, I am very very careful to have my hands on the dashboard and radio off by the time a policeman that has pulled me over gets to my car. And before I move my hands, I tell him exactly what I'm doing ("Officer, I'm reaching over to the glove box to get my insurance card.")

Thanks, Gobbo -- although I'm dead-set solid that Oswald was the lone shooter.

This is a highly contentious issue over here. The current justice department is very aggressive with respect to white-collar criminal prosecutions, and in my view has really pushed the envelope. For example, prosecutors often insist that companies waive the attorney-client privilege and refuse to pay legal fees for executives who have been individually charged. Both rules are horrible, and reflect another facet of the problem your link articulates.

Plea decisions are very, very difficult. And prosecutors are known to add charges just to increase a defendant's risk. I think there's a fair argument to be made that plea demands can be coercive. Speaking rather more personally, I'd likely be willing to trust the jury system if I were unfairly charged -- although I must say that the notion of trying a complex financial accounting case is daunting indeed. That's so not just because it is expensive as all hell to get one to trial, but also because no juror will ever understand complex accounting in a trial setting. Most of the securities laws are written in an ambiguous way that makes them very very difficult to understand, so there's often a huge struggle to define themes intelligently, yet simply enough that a jury will get what's going on.

As for you Brits, I have a case going to trial in London next year, and may be there for some time. I will say that the level of advocacy among the barristers I've seen is very, very high. Some of these guys are really, really impressive.

Part of that comes from a procedural difference in the US system. In civil trials, we get to take testimony from witnesses during discovery, and can test out cross-examination. You UK guys can't, and so are much more practiced at taking what I'd call a "cold" cross, where you see your witness for the very first time in the courtroom.

Yep. One of my life's great regrets is when some girl in college offered me an extra ticket to a U2 concert. She was kinda hot, but I was sorta committed elsewhere, so I declined -- then soon after ended things with my then GF. Dumb, Howard, dumb.

HT,

1) Do you legitimately enjoy what you do? Everyone I know who is, was or is studying to be a lawyer seems to hate it and that really turned me off from any consideration of a career in law.

2) What is a crook? A group of friends get into this argument a lot after a little drinking. Side A says it's a criminal. Side B says it's only a thief, arguing that a murderer is clearly not a crook. Side A will concede that but argues that it should encompass more than just robbing someone. What is you legal opinion?

Howard,

I am researching on the logistics of opening an investment adviser firm. How important is a "legal counsel?" The firm will probably needs a legal counsel to draft up a client/adviser agreement [similar to this http://www.evergreenfinancialadvisor...greement.pdf].
A person can write an agreement similar to that but it wouldn't be too smart to not have a lawyer.

Thanks!

Yep. It has long been fashionable to hate lawyers and law practice, but I only rarely feel that way. It's almost always when I'm in some extended fight with an opponent who is outright dishonest, so you have to protect yourself at every turn -- and that's not fun. I didn't think law school was difficult, and I actually enjoyed it a good bit. Practice was annoying for about my first three years, and got really good after that, after I started getting significant courtroom time. I would say that managing litigation is easier than litigating, but without the adrenaline-charged upside of courtroom practice.

I think "crook" describes rogues -- frauds, sharpers, cheats. I'd say that Ken Lay and Andy Fastow were crooks, but that Ted Bundy was not. Frank Abagnale was the prototypical crook. And Richard Nixon was likewise a crook, despite his protestations to the contrary.

I would say critical. I have no idea what the regulatory environment is for such firms, but I submit that regulatory noncompliance would be a death knell for a financial advisory form. The link doesn't work, but I'm guessing the agreement is a client agreement designed to ward off suitability or churning claims. I've litigated a couple, and the agreements do matter -- so my strong advice is to hire counsel.

There are like a thousand sex crime related statutes that disagree with you on this.

Also, I'm a libertarian gun-nut and I would not feel the slightest bit of outrage if those guys were summarily put to death.
Not to tangent the thread, just pointing out that you've likely misidentified the philosophical underpinnings of your implied narrow view on what constitutes cruelty to animals.

I'm thinking you're referring to things like registration statutes and residency limitations. I suspect without knowing that those are pitched as preventive measures rather than as additional punishments. I also could easily be missing your point, so if I am please describe one of the statutes to which you refer.

Morally, I'm 100% with you. The guys that did this are total scum. But I don't think animals have rights per se; I think they are property -- and the rights violation here is to the property of the animal's owner.

I don't think I have a narrow view of what is cruel to animals, but rather what should be criminalized.