Archive for March, 2012

Trust me, I’m a lawyer….

Monday, March 26th, 2012

You’d think that lawyers are the only people on Earth who don’t hear the phrase “Trust me, I’m a lawyer.”  But, in fact, we probably hear it more than most.  From whom, you ask?  Legal marketers.

Recently, I’ve been contacted several times by an outfit called Yodle.  Yodle performs marketing services for lawyers and others.  And, if what I’ve seen is so, it does it very badly.  Because Yodle takes a classic one-size-fits-all approach.  Now, understand that my own experience with Yodle is based on a discussion with one of its marketing representatives who kept insisting that I could get more personal injury cases and appellate cases through a Yodle website.  (Except that she couldn’t pronounce the word “appellate” properly.)  I’ll grant you that my website could probably do with some more traffic, but I’m also pretty convinced that anyone who would hire me strictly based on my website is probably not someone I want to work for.  Legal representation is personal representation.  The person who stands up in court and speaks for you is, for all intents and purposes, YOU.  So make sure he or she is someone you trust.

But the thing that really got me about Yodle’s whole hard-sell was that the salesperson—I won’t give her any other title (sorry to any salespeople reading)—was that she told me that she was a lawyer, so she understood my problems and concerns.  But how is it that she knew all those things without actually practicing law on a day-to-day basis?  How is it that she knew the stresses and strains of running a law practice?  And how is it that she knew the particular concerns of a small-firm (in my case, tiny firm) appellate practitioner?  Answer:  she didn’t.  She had no idea.  None whatsoever.

That’s where lawyers can get taken in as easily as anyone else.  When someone says he’s like you, you want to believe him.  When he says he knows where you’re coming from, you want to sign on.  But, if it’s just a sales pitch, you need to look deeper.  Ask questions.  Probe.  I turned Yodle down before I even realized that my good friend Mark Bennett had heavily slagged them on his own blog.  Had I done my research first, that’s a few minutes of my life I would have had back.  When someone says “trust me,” your first move should be distrust.  Trust is earned.  Not asked for.

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The Contemporary Constitution

Monday, March 12th, 2012

Norm Pattis writes today about Hon. J. Harvie Wilkinson, III, and his opinion on opening up the legal can of worms that is is the U.S. Constitution.  Judge Wilkinson, in an op-ed piece in the New York Times, suggests that all the debate over the meaning of the Constitution–and, I suppose, the increasing amount of it every four years–really does not serve us well.  Judge Wilkinson argues that elevating every argument to a discussion of Constitutional interpretation and values risks either demeaning the value of fully debated and vetted federal legislation or devaluing the laws of state and local communities.

Norm takes issue with the Judge’s piece, and, I think, understandably so.  While Judge Wilkinson argues that much of what passes for constitutional debate is really political argument, Norm argues against the kind of conservatism advocated by Judge Wilkinson because it would “keep the Constitution in its place;” that is, tied up in interpretations that are themselves governed by opaque rules of interpretation.  As Norm correctly and poetically observes, “Each generation recreates the document for itself.”  No one owns the law.

Norm’s position is one I’ve stated myself on this blog.  Nevertheless, I’m sympathetic to the basis for Judge Wilkinson’s argument.  To me, the real danger lies, not in the elevation of political argument to the constitutional level, but of the dragging down of the Constitution to mere politics.  How many times in recent years have we seen proposals for new Constitutional amendments, be they to define marriage, allow school prayer, require a balanced budget, or–let’s face it–see to it that Arnold Schwarzenegger is eligible to run for President?  The trend in our national discourse has been to have more and more of these proposed amendments come along.  And that says to me that the Constitution is being regarded as the ultimate political end run.  Tired of debating something? Get a constitutional amendment passed, and kick it all over to the courts.  Let them deal with the fallout.  Even if you can’t get it passed, you’ve taken an uncompromising position and can’t be accused of being wishy-washy.

The Constitution should be interpreted by each generation, but its interpretation should be governed in light of its history.  It doesn’t exist for the transient political whim of the moment, and I like to think that is what Judge Wilkinson was getting at.  There is always going to be a tension between fundamental rights and lesser ones when we examine them through the lens of the law.  As Justice Brennan once wrote, “the demands of human dignity will never cease to evolve.”  That is reason enough for flexibility in our Constitutional interpretation.  But present passion should always be safeguarded by long-term perspective.  The values enshrined by the Constitution are contemporary; but the underlying principles are also eternal.

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Pulling up the ladder

Thursday, March 1st, 2012

The Texas Board of Legal Specialization exists to certify to the public that certain lawyers who meet its criteria have particular expertise in the areas where the Board certifies them.  That is an admirable goal.  There are a limited number of lawyers who meet the Board’s standards and have applied for certification—approximately 10 per cent of currently practicing Texas lawyers, according to the Board’s own figures.  That places any lawyer with Board certification in an elite group.

But do the Board’s criteria for certification make sense?  It’s one thing for an organization to choose its membership and advertise it to the public and another thing for it to hold out that choice as being an indicator of superiority over non-members.  In the case of the Board of Legal Specialization, it seems like its membership criteria are distinctly behind the times.  I’ll confess up front that I am an aspiring member of the Civil Appellate section of the Board’s certified members.  I don’t meet all of the Board’s criteria, though I expect to be able to meet most of them within the next year.  But there’s one criterion that I don’t expect—in any kind of realistic forecast—to be able to meet any time within the next few years.

The Board spells out a number of specific requirements for membership.  One of those is that an applicant for certification “must have presented oral argument to an appellate court on one significant issue of substantive or procedural law” in at least four of his or her cases before Texas or federal appellate courts.  The problem with this requirement for those of us—including myself—whose practice is state-court centered, is that, since 1997, Texas appellate courts have not been required to allow oral argument in any civil case.  Thus, one of the requirements for board certification is placed at the mercy of often-variable court docketing.  Appellate courts are not required to disclose why argument may be granted in one case and denied in another, but it may have as much to do with the volume of cases at a particular time as it does with any merit.  They can decide that oral argument is unnecessary simply because oral argument would not be of significant aid to the court’s decision or because the facts and legal arguments are sufficiently presented in the written briefs.  In other words, the better the job you do on your brief, the less likely you are to be granted oral argument.  (Also, when I represent an appellee in the appellate courts, I frequently avoid asking for oral argument or avoid asking for it on anything other than a conditional basis–i.e., if you grant it to the appellant, I want my time.  There’s little to be gained from drawing the court’s attention to a trial court decision, if you want it to stand up.  Winning is winning, whatever the level.)

Since the Texas Rules of Appellate Procedure changed to allow courts to pick and choose what cases they hear in oral argument, the number of those arguments has dropped drastically.  (The other side of the argument is here, provided by Todd Smith, an excellent appellate lawyer and blogger.)  This suggests, not so much a problem with the courts, as a problem with the Board’s criteria.  Our state’s appellate courts are overworked, and, given the recent budget crisis, that situation is likely to become worse before it gets better.  The courts have made adjustments that the Board simply hasn’t.

I realize that much of this may sound like sour grapes from an outsider.  But, if oral argument were an integral, central part of civil appellate practice, it would make sense to have it as an integral, central part of Board certification.  The Board should certainly ensure that candidates have demonstrated their chops in all relevant areas of the practice.  But, if oral argument has fallen by the wayside—and the changes to the appellate rules and appellate court practice suggest that it has—the Board should change with the times.  Its current posture misrepresents the nature of civil appellate practice and risks its own irrelevancy.

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