Real lawyers use WordPerfect

The Powers That Be keep asking me what we’ll need for the clinic next semester. So, the other day I ordered some blue and red Paper Mate Flairs. Today, I’m going to have my assistant get some of the good legal pads (by which I mean Ampad Dual Pads, obviously). I spent yesterday flipping through potential course materials and asking advice of Prof. Sarah Schrup, who runs Northwestern Law’s wildly popular Seventh Circuit clinic and Supreme Court clinic. Then, I spoke with one of our research librarians about getting us a PACER account, so that we don’t have to use DOM’s. Tomorrow I’ll go downtown to the FPD’s Office to continue talking about how and when we will select cases. And then I guess we’ll be more or less ready. (Application information can be downloaded from the sidebar.)

Except that this morning I realized we’re going to have the word processing issue. Students think Microsoft Word is an acceptable word processor. Because they don’t know any better. Those of us who processed words before 1987 know that Word is just barely serviceable and that— because it sports tons of useless “features” strewn about a labyrinthine agglomeration of nested menus that it tries to explain with that infuriating dancing paper clip—it is really not much of an improvement over just dictating entire briefs to a secretary with an IBM Selectric. It is so embarrassingly deficient that it’s hard to find anyone who used WordPerfect before using Word who doesn’t deeply despise Redmond’s product. In fact, I run a virtual Windows machine on all of my Macs solely so that I can run WordPerfect. (They no longer make a Mac version.) In fact, the early 1980’s versions of WordStar are in some ways better than today’s Word. And in fact, that is why many lawyers and the federal judiciary and the Department of Justice use WordPerfect to this day. So, now I have to figure out how to surmount this little obstacle.

Storming the real world

I keep a foothold over in what we in academia call the “real world”. Wednesday, in fact, I had both feet firmly planted before an Eleventh Circuit panel, which is about as real as this gets. And, as I’ve previously suggested, the ability to write persuasively is important out there. So, with considerable help from our FPD alumna Kathleen Williams and the support of the Eleventh Circuit, I am leveraging my real-world beachhead to provide some real-world experience in appellate advocacy for some of our students.

The Eleventh Circuit has green-lighted my proposal to be assigned pro bono a few criminal appeals for indigent defendants with non-complex cases. I will supervise pairs of students who will plan and write the briefs. Kathy has designated AFPD Beatriz Galbe Bronis to supervise me, which Beatriz has some experience doing. See Enrique Marugan Giró v. Banco Español de Crédito, 1999 WL 440462 (S.D.N.Y. June 28, 1999). Students will be selected through essentially the same application process that the School uses for its other live-client clinics. I hope to feature guest appearances by other luminous appellate lawyers from the community. For instance, another of my former bosses, alumnus Judge Adalberto Jordan, who celebrates 10 years on the district court bench this week and was previously chief of appeals at the U.S. Attorney’s Office, can expect a call.

Beatriz and I are working out the details. The upshot is that the FPD’s Office gets a hand with a small number of relatively simple cases, and some of our students have an opportunity to enhance their written advocacy skills.

Placement of piece

A while back, a friend who is a business consultant started asking me about my job. You know there’s something seriously wrong when a freaking business consultant thinks your job is a bit senseless.

“So, how many classes do you teach?”

“Three or four, depending on the year.”

“Three or four a year?”

Then I have to explain about legal scholarship and law review articles, what they are, why one writes them, where they get published and by whom and how.

“So, let me get this straight. You spend months writing one of these long articles and then you just send it out to a bunch of law schools and the students decide which ones to publish?”

“That’s right. And then, when it gets accepted by one law journal, I have to contact the students at the higher-ranked law journals to see if they’ll take it because the object of the law-professor game is to get the best ‘placement’ for your ‘piece’ that you can. That’s how you get prestige points.”

“What? Are you [expletive] kidding me? That makes no sense. Does anyone even read these?”

“I don’t know. Anyway, what do you do? You fly around telling companies to fire bunches of people and then have team-building exercises with the terrified few who are left.” So, there.

I sent out my latest piece a couple of weeks ago and it got picked up. Then, even though I swore I would never do this after tenure, I put in my “expedite request” at a few other journals only because the very nice kids who offered to publish the article gave me a week to do just that. Everyone understands that this is the racket. I suspect there are law journals that don’t even look at your stuff until someone else picks it up. The whole thing feels dirty and wrong. I mean, can you imagine if you asked a pretty girl to the prom and she said, “Oh, sure, I’d love to go with you! But why don’t you take a week and see if you can’t do better? I think once some of the prettier, more popular girls hear that I said yes, you’ll seem a lot more attractive. Give it a shot. I’ll be here waiting if you strike out.”

Most of the law journals replied to my expedite request with a polite but boilerplate we’ll-let-you-know-as-soon-as-we-can email. A couple, however, have delusions of being a super-hot cheerleader with a convertible Mercedes. Or something. And that’s kind of a turn-off. One journal wrote:

We would be happy to expedite review of your article, but unfortunately we are unable to meet your deadline. If you can obtain an extension until Thursday, I can have a decision to you by that date—at the latest. If you are reluctant to request an extension without some further indication of our interest, we would also be willing to give the article a preliminary review by the end of this week. However, upon an expression of our interest, we would require that you request an extension until Thursday.

Translation: “Maybe I’ll be your date. I don’t really know right now. But the only way I could see myself doing that is if two, possibly three, other dudes get snatched away by someone else. So, don’t rush me. We’re just gonna have to wait and see what happens.”

Another one responded with this, which I kind of respect in a way:

We will do our best to complete our review before your deadline, and will contact you directly if we are able to extend an offer of publication. Please be advised of our general policy that an offer extended pursuant to expedited review of a manuscript is effective for one hour from the time of actual notification. If you do not hear from us, we strongly recommend that you accept your other offer.

Translation: “You are not even going to embarrass me by running around school for days telling everyone I said I’d be your date and then ditching me for someone you think is slightly cooler. Not happening.”

Health and mood

A couple of the new people around the building are in the habit of answering, “How are you?” with, “I am well.” This has been driving me up the wall. It’s every bit as bad as, “between you and I,” which has the same effect on me as when Sister Joan used to scratch her fingernails all down the chalkboard to get the sixth grade to shut up.

So, I asked another colleague who I know to be sharp about such matters, “How are you?” and he said, “I’m okay. And you?” And I said, “Exactly. Because I’m not asking you about your health.”

“No, you’re inquiring after my state of mind or mood.”

Exactly. So, I asked him what was wrong with those folks who kept informing me how well they are. He said that they probably assume that the question is about their health “given their age,” by which he meant either that they’re presumptively frail or were brought up at a time when the question commonly meant something other than what we take most people to mean by it.

“Do you think that’s it or do they just not know the difference between an adverb and an adjective? Because I think it’s the latter.”

“I don’t know. It could be either, I guess.”

“All right, thanks. I’m good.”

Deep Space LC-170

I heard a rumor the other day (which I have made no effort at all to substantiate): our “extra” section, which is taking all of its classes over in our satellite classroom, LC-170, has taken to calling itself the “experimental section”. If this refers to what I think it refers, it’s pretty damn clever.

What makes an LSAT so precise is that every question on it has been tested by thousands and thousands of students before making it onto an actual exam. LSAC achieves this by forcing students taking an LSAT to answer a bunch of questions that won’t count toward their score but not telling them which ones those are:

The test consists of five 35-minute sections of multiple-choice questions. Four of the five sections contribute to the test taker’s score. The unscored section, commonly referred to as the variable section, typically is used to pretest new test questions or to preequate new test forms. The placement of this section will vary.

Only LSAC calls it the “variable section”. Aspiring law students have forever called it the “experimental section”. And everyone knew that if you found yourself answering a series of questions that didn’t quite make sense or were ambiguous or had two logically correct answers or no correct answers, that you should get ahold of yourself and not freak out because that probably was the experimental section.

So, I think the students relegated to LC-170 are feeling a little isolated. It’s interesting that, even though I’m sure that group was picked randomly, they may be self-identifying as the overflow group. We should do some cross-disciplinary work by getting some psychology students over there to write this up. Anyway, buck up, Experimental Section. You’re scheduled for integration next semester when LC-170 will no longer belong to any one section. And kudos on the name. You should have T-shirts printed up.

The City Beautiful deploys imperial probe droids

Coral Gables has installed a complex camera array at Alhambra and LeJeune that fires a burst of laser beams at cars that run the red light, instantly vaporizing them. Or fines the owner. The Herald reported this Orwellian development without quotes or color. They also say nothing about the company responsible for this technological (and aesthetic) atrocity, American Traffic Solutions, whose name is doubly ironic because the company is dedicated to foisting a most un-American problem on us. One of their competitors has the far more apt name of Redflex Traffic Systems, which connotes both a commitment to a totalitarian ideology and an infantile infatuation with brute force. ATS boasts, “We have installed nearly 1,100 cameras around the country, with hundreds more in various planning stages.” Fantastic. Sounds like you’re building just the kind of world we all dream of living in.

One federal district court held that a Missouri town using an ATS array did not violate due process, mainly because the red-light fines were civil in nature. In another case, a very clever plaintiff alleged that ATS violated Texas law because what they did amounted to investigation and required a private investigator’s license. But that suit was dismissed. Where’s the ACLU when you need them? We need a whole horde of sandle-wearing, twig-eating, do-gooder, ex-hippie lawyers to take ATS and Redflex out before they deploy any more probes. I mean, how can anything so ugly not violate 12 or 13 Gables ordinances? Isn’t this the same place that made you hide your F-250 King Ranch?

Did you see that?

As I was explaining to the new Dean the other day, I’m a fair-weather fan if ever there was one. (She, incidentally, supports U of M—the one in Ann Arbor—in case you were wondering.) The long and the short of it is, I see no point in backing losers. Where’s the fun in that? I know, I know. Red Sox fans for years found some misanthropic perverted joy in following their sad little team until they finally won at the end of that Drew Barrymore flick, but I just don’t see the point. See the two young men in the pictures? One of them is having fun and the other, well, not so much, right?

Anyway, I’ve been spoiled. When I was growing up—and especially during my time as a student at UM—we won. So all I have to say after yesterday is: so far, so good.

“A total breakdown”

There are a bunch of reports on the interwebs about the decision of Judge Stadtmueller, E.D. Wisc., to recuse from all criminal cases. The reports include very little actual reporting. Mostly, they quote the overly chatty court clerk, who is embarrassingly clueless about everything and should really just be quiet.

The whole story is, of course, available on Westlaw to anyone who bothers to look. The saga is over a felon-in-possession case that was brought in federal court after the State of Wisconsin nolle prosse’d it. The defendant pled guilty after the government said he was not an “armed career criminal” which would mean a crushing sentence. After he pled, the government changed its mind, and then opposed the defendant’s motion to withdraw his plea. (Ha, what a cagey government!) The defendant withdrew his plea anyway, was convicted after trial, and successfully appealed. After all that, the first trial judge recused and the case landed on Judge Stadtmueller’s desk.

The Judge … called a meeting in chambers on October 9, 2008, with then-United States Attorney Steven M. Biskupic and Federal Defender Daniel W. Stiller. Assistant United States Attorney Gordon P. Giampietro and Associate Federal Defender Nancy Joseph, who were the attorneys actually litigating the case, were not invited. No court reporter was present, and no meeting minutes are reflected on the district court’s docket. The Judge began by telling Mr. Biskupic and Mr. Stiller that he would not hear discussion, comment or response from either of them. According to the parties’ submissions, the Judge then recounted the procedural history of the case and reminded the office heads that, before the confusion surrounding application of the armed career criminal statute, both parties had preferred to resolve the case with a plea bargain. The Judge also suggested that his pending ruling on the motions to suppress would not satisfy either party and recommended that they consult with the assigned attorneys to explore the possibility of resolving the case without additional litigation.
The Government adds that, in discussing the procedural history of the case, the Judge suggested that there was “an awful lot of blame to be spread around for what he considered to be a total breakdown of justice.”
* * *
… The Judge called an off-the-record meeting with the United States Attorney and the Federal Defender. This manner of proceeding in a federal criminal matter is indeed unusual and necessarily raises substantial concerns in the mind of any well-informed observer. We must take special note of the fact that no record was taken of the meeting. In other contexts, this and other courts have pointed out the need to make a record whenever substantive discussions take place between court and counsel, and we see no reason to exempt the present situation from that admonition. …
The substance of the discussion at the meeting convinces us that the Judge misapprehended the limits of his authority. The parties agree that, at the October 9 meeting, the Judge suggested a specific plea bargain. This participation was clearly violative of the specific prohibition in the Federal Rules of Criminal Procedure that forbids the court from becoming involved in plea negotiations. …

The Seventh Circuit issued a writ of mandamus ordering the judge to recuse himself. The judge’s subsequent refusal to take criminal cases until the Obama people pick a new U.S. Attorney gets reported as the story of a crazy judge who’s gone off the reservation. (The judge, incidentally, was appointed by Reagan and was the United States Attorney for the district. He’s hardly a pink-o.) This tale needs to be understood in the context of Draconian mandatory-minimum sentences that are routinely relied upon by prosecutors to extort guilty pleas. Judge Stadtmueller isn’t the only judge who’s had enough of this.

Too many secrets

This thing about Facebook, etc., is vexing me. I think the premise behind employers and The Bar wanting to see even “private” social networking pages is that there is a prevailing sentiment that these pages are created for publication, not unlike a résumé, which is obviously non-controversially required. But if you happen to have a Facebook, etc., page with a tightly limited distribution, then an employer asking for your password is a bit like demanding that you bring your family photo album to the interview—something that would be clearly inappropriate. Not to mention that your social networking page may include protected information like your religious, political, whatever affiliations that are all taboo job interview topics. But since I don’t see anything redeeming or useful about Facebook, etc., to me the whole problem is trivial—like if the government wanted to outlaw Dungeons ’n’ Dragons or skateboards. No big loss.

But I’m now thinking that this same principle might somewhat impact the greatest application ever, Dropbox. Dropbox is miraculous. It creates a folder or directory called “Dropbox” on each of your computers—whether it is a Mac or a non-Mac. That folder is magically kept in sync across all of your computers. So, if you edit a file on one computer, it is updated on all of them. Plus, you can make sub-folders to share with other Dropbox users, which are likewise kept in sync, so that you can collaborate on projects. My colleague Sam at DU and I make extensive use of it for the crim pro textbook that West is expecting us to finish by March. (The world does too need another crim pro textbook.) In short, it eliminates any need to email files from your office to your house, etc., or to your research assistants, co-authors, etc.

Dropbox, however, also makes a copy of your files on Dropbox’s servers. The upside to that is that you can get them anywhere, even from your iPhone. The downside is that the Supreme Court would consider those files “not private” like your bank records. Plus, I suspect you would lose any sort of attorney-client-privilege/work-product claim about them. But, I thought, wouldn’t the same be true of files you email, because they wind up on a bunch of servers out there in the ethos or wherever email travels?

It’s all very complicated. But I’m going to get on this, right after the gym today. I get paid to think about this kind of stuff.

Good judgment

I wrote a post the other day but, because it dealt with a somewhat sensitive subject matter, I circulated it to three lawyers before publishing it. Only one those lawyers suggested holding off, but I took her advice and ignored the other two. It’s hard to have good judgment all the time, which is why I have friends do that for me whenever possible.

Speaking of friends and judgment, The Florida Bar is now warning applicants that it will be looking at their Facebook, etc., pages to “determine whether a question should be added to The Florida Bar application to require that all such sites be listed and access granted to the board.” This is exactly the sort of thing that blogger-types get all heated about, which I frankly don’t understand. Already, prospective employers routinely check applicants’ pages, which is only responsible. It’s called capitalism. So why shouldn’t the Bar?

More to the point, if Facebook, etc., serve any useful function at all—and I doubt that they do—it is to warn the unsuspecting public about people with no sense of decorum in public spaces (whether physical or ethereal). For example, there was a student not long ago whom I was considering for a job with a buddy of mine who needed help at his practice. This guy—who appears to be a perfectly sound, intelligent, and responsible student—lists “Jim Beam” and “happy hour” as hobbies on his Facebook page. (Of course I checked. I’m not going to go around recommending people without checking.) That ended right then and there. It’s not that plenty of perfectly decent people don’t enjoy happy hour. (Let’s just put to one side that choosing Jim Beam as your preferred poison betrays a gross lack of sophistication.) The point is—well, the point is obvious, isn’t it? Happy hour is just not a hobby or interest. It’s like saying you enjoy shopping. Or watching TV. These are things no one should admit.

The really dastardly thing about social networking sites, of course, is that they’re networked. Even if you have a perfectly respectable page with references to significant works of art and literature, etc., the reader is just a few clicks away from the pages of all your “friends” from which conclusions about you are only too facile. Birds of a feather, you know. Or, if you prefer, as my grandmother says, «Dime con quién andas y te diré quién eres.»